Your Employment Law and Litigation Professionals

Supporting Your Workplace Rights

Work Injury Lawyers/Workers Compensation Retaliation Attorneys

Is illegal to fire someone for filing a workers compensation claim?

It is illegal in Illinois for an employer to retaliate someone who files for workers compensation.  In fact, even if someone suffers an on the job injury and a workers compensation claim is anticipated, it may be illegal to fire the worker.  Likewise, if someone is fired for taking FMLA leave, that also can be illegal.  The law protects the rights of employees who have workplace injuries.

In Illinois, the Workers’ Compensation statute is in place specifically to protect employees from work-related injuries. Under the statute, an employee who is injured at the workplace while performing work duties is entitled to medical care for their injury so long as the employee makes a claim.

The statute requires most employers to purchase workers’ compensation insurance to pay for work-related injuries that may occur and, thus, almost every employee in Illinois is covered by workers’ compensation from the moment they begin working. Importantly, the Illinois workers’ compensation statute is a no-fault system, meaning the injured party does not have to prove the employer was negligent or at fault prior to becoming entitled to compensation.

Employees who are uncomfortable about filing a workers’ compensation claim with their employer may take comfort in the fact that workers’ compensation claims benefit both the employer and the employee. That is, when an employee files a workers’ compensation claim, he agrees not to file a lawsuit against their employer for their work injury in return for receiving compensation benefits. In fact, employers are not harmed because it is not the employer who pays the expense, but the employer’s workers’ compensation insurance.

On the other hand, employees benefit because when they file a workers compensation claim, they may be entitled to payment for their medical bills, eliminating most, if not all, out-of-pocket expenses. Furthermore, if an employee is injured to the where they are unable to work following the workplace injury, a workers comp. claim may allow the employee to get  2/3 of their average weekly wages until they are able to return to their position following their workers compensation claim. Finally, because Illinois is a worker-friendly state, employees may also receive payment for the permanency of their injuries depending on the workers compensation claim.

It is important that an injured employee notify the employer of their injury soon after being injured to help preserve a workers comp claim and that they also seek our appropriate advice form a worker comp lawyer who practices work worker injuries.


Illinois recognizes a cause of action when the employee is injured and is discharged in anticipation of a workers’ compensation claim. Wolcowicz v. Intercraft Industries Corp., 478 N.E.2d 1039 (Ill. App. Ct. 1st Dist. 1985). For example, in Gordon v. Fedex Freight, Inc., 674 F.3d 769, 773-74 (7th Cir. Ill. 2012), the court ruled that Illinois law states “…an employee exercises a right under the IWCA merely by requesting and seeking medical attention.”   The Court explained that:  “After Gordon sustained her injury, she reported to First and requested to go to the hospital. The following day,  [**9] Gordon called the service center and informed Mallonee that she would be seeking additional medical attention from her family doctor. In light of these facts, First and Mallonee were surely aware that Gordon was actively requesting and seeking medical attention. Under Hinthorn, Gordon has met her burden of demonstrating the exercise of a right under the IWCA.”

Likewise, in Gacek v. Am. Airlines, Inc., 614 F.3d 298, 299 (7th Cir. Ill. 2010) the plaintiff injured his finger and reported the injury to the defendant.  When he had first reported the injury a claim file had been opened by the airline’s administrator of workers’ claims.  The court ruled that a discharge motivated by an injury report is a retaliatory discharge under Illinois workers’ compensation law.  This is true even if the employee files a workers’ comp claim years later after the discharge.   See also, Washburn v. IBP, Inc., 910 F.2d 372, 373 (7th Cir. Ill. 1990)(“Illinois courts have recognized a cause of action when a plaintiff is discharged in retaliation for filing a claim for workers’ compensation, or for seeking medical attention.”); Bryant v. Avon Prods., 1998 U.S. Dist. LEXIS 3637, at *12 (N.D. Ill. Mar. 19, 1998)(Illinois recognizes a cause of action for retaliatory discharge when an employee is discharged in retaliation for seeking medical treatment for a work-related injury.);  Lambert v. Lake Forest, 186 Ill. App. 3d 937, 941 (Ill. App. Ct. 2d Dist. 1989)(Illinois state common law recognizes a cause of action when the employee is injured and is discharged in anticipation of a workers’ compensation claim).


The Illinois Supreme Court made an interesting ruling in the case of Michael v. Precision Alliance Group, LLC., 2014 IL 117378.   The ruling helps clarify the standard in Illinois for retaliatory discharge cases.     The Court explained that “while there is no precise definition of what constitutes clearly mandated public policy, a review of Illinois case law reveals that retaliatory discharge actions have been allowed in two settings: where an employee is discharged for filing, or in anticipation of filing, a claim under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 1992)); or where an employee is discharged in retaliation for the reporting of illegal or improper conduct, otherwise known as “whistleblowing.” Jacobson v. Knepper & Moga, P.C., 185 Ill. 2d 372, 376 (1998). The rationale is that, in these situations, an employer could effectively frustrate a significant public policy by using its power of dismissal in a coercive manner. Therefore, recognition of a cause of action for retaliatory discharge is considered necessary to vindicate the public policy underlying the employee’s activity, and to deter employer conduct inconsistent with that policy. To sustain a cause of action for retaliatory discharge, an employee must prove: (1) the employer discharged the employee, (2) the discharge was in retaliation for the employee’s activities (causation), and (3) the discharge violates a clear mandate of public policy.”

In essence, retaliatory discharge/whistleblower cases arise when an employee is wrongfully fired in retaliation for an activity that relate to something important to public policy.   Examples of retaliatory discharge/whistleblowing cases that are sometimes raised involve when an employer is involved in illegal misconduct, cheating the government, or violating other laws. The Supreme Court clarified that the burden of proof is on the employee to demonstrate their case.  The Court held that “in retaliatory discharge cases, an employer is not required to come forward with an explanation for the employee’s discharge, although an employer may choose to offer a reason if it desires. Id. If an employer provides a reason for the employee’s dismissal, that does not automatically defeat a retaliatory discharge claim. However, “if an employer chooses to come forward with a valid, nonpretextual basis for discharging its employees and the trier of fact believes it, the causation element required to be proven is not met.” Id. Again, the burden rests on plaintiff to prove each of the elements of the cause of action.”


Our Chicago attorneys are here to help you and can point you in the right direction to find a workers compensation lawyer or to help you if your employer discriminates against you for filing a workers compensation claim.

  • Free Case Review

    * (See Disclaimer Below)

  • Click here to fill out our Wage and/or Overtime Potential Client Intake Form

    Click here to fill out our general Employee Potential Client Intake Form

  • "The information contained on this site, submitting a case to us, and/or discussing your case with us does NOT create an attorney-client relationship. Only an executed engagement letter will create an attorney-client relationship. In other words, we are not your lawyer until we agree through a written engagement letter to be your lawyer. Please do not send any confidential information to us until an attorney-client relationship has been established through a written contract."