One of the most common questions injured workers ask is whether their employer can fire them after they report a work injury or file a workers’ compensation claim. The fear is understandable — no one wants to lose their job on top of dealing with a serious injury, mounting medical bills, and lost income. The short answer is complicated: Illinois is an at-will employment state, which means employers generally can terminate workers for many reasons. But the law prohibits certain categories of termination. Here is what every injured worker in Illinois needs to know.
Illinois Is an At-Will Employment State
Most Illinois workers are employed “at will,” meaning their employer can terminate them at any time, for any reason, or for no reason at all — unless that reason is illegal. This surprises many people, including some who assume that having a workers’ compensation case in progress provides automatic protection against termination.
It does not. A pending workers’ compensation claim does not, by itself, make an employee immune from being fired. An employer may still lawfully discharge an employee during a workers’ compensation claim for reasons entirely unrelated to the injury — poor performance, violation of company policy, downsizing, or inability to return after protected leave ends, for example. The critical question is always why the employer made the decision to terminate. If the real reason is the workers’ compensation claim, the discharge may be unlawful. If the real reason is something else entirely, it may not be.
Illinois Recognizes a Claim for Retaliatory Discharge
Illinois courts recognize a common-law tort claim for retaliatory discharge when an employee is fired for exercising rights under the Illinois Workers’ Compensation Act. This is a limited but important exception to at-will employment. To succeed on a retaliatory discharge claim, the employee must prove three elements: that an actual discharge occurred, that the discharge was caused by the employee’s exercise of workers’ compensation rights, and that the termination violated a clearly mandated public policy.
The distinction between a lawful and unlawful termination often comes down to motivation. An employer can lawfully fire a worker who caused an accident by violating a workplace safety rule. The same employer cannot fire that worker because the workers’ compensation insurance premiums went up, or because the employer wants to avoid dealing with the claim. Proving retaliatory intent requires evidence — and the burden falls on the employee. Timing matters: a termination that occurs shortly after an injury is reported or a claim is filed can raise a strong inference of retaliation, but timing alone is rarely enough.
Two important limitations: the retaliatory discharge claim in Illinois is against the employer as an entity, not against individual managers or supervisors. And the claim requires an actual discharge — employees who are demoted, have their hours reduced, or suffer other adverse treatment short of termination cannot pursue a retaliatory discharge claim, though other legal theories may apply in those situations.
One more nuanced situation involves resignation. Employers sometimes ask injured workers to resign as part of a settlement discussion, and this can raise retaliatory discharge concerns if the facts support that the resignation was effectively coerced. However, not every request to resign during settlement negotiations is unlawful — the analysis depends on the full circumstances, including whether the worker had a genuine choice and whether the employer’s conduct crossed the line into constructive discharge.
Your Rights Under the Family and Medical Leave Act
Even when outright retaliatory discharge is not at issue, many injured workers face a different threat: being fired because they need time off to recover. Whether that termination is lawful depends in large part on whether the worker qualifies for protection under the federal Family and Medical Leave Act (FMLA).
The FMLA entitles eligible employees to up to 12 weeks of protected, unpaid leave per year for serious health conditions, including qualifying work-related injuries. To qualify, the employee must have worked for the employer for at least one year, logged at least 1,250 hours of work in the prior 12 months, and the employer must have 50 or more employees within a 75-mile radius of the worksite.
Not every work injury triggers FMLA rights. The injury must also constitute a “serious health condition” as defined under the statute — generally meaning a condition that requires inpatient care or continuing treatment by a healthcare provider. Many significant work injuries will qualify, but minor injuries that do not require ongoing medical care may not.
An important practical point: workers’ compensation leave and FMLA leave can run concurrently. If you are on workers’ compensation and your injury also qualifies under the FMLA, your employer may designate the leave as FMLA leave at the same time. This means you may exhaust your 12 weeks of FMLA protection during your workers’ compensation recovery, potentially leaving you without job protection for the remainder of your leave. Understanding this overlap is critical when evaluating your situation.
If you qualify for FMLA leave, your employer cannot terminate you simply because you are absent during the protected 12-week period. Terminating an FMLA-eligible employee for taking that leave is itself a violation of federal law, entirely separate from any workers’ compensation retaliation claim.
How the Americans With Disabilities Act May Also Protect You
The Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against workers with disabilities. The Illinois Human Rights Act (IHRA) provides similar protections and, for disability-based claims, can apply to employers with fewer employees — though the IHRA’s precise employer coverage definitions are detailed and vary by category of claim. A work injury that causes a lasting physical impairment may qualify as a disability under these laws.
Under the ADA and IHRA, an employer with an obligation to accommodate has a duty to engage in an interactive process with the employee to determine what modifications are reasonable. Reasonable accommodations can take many forms — a modified work schedule, a temporary change in duties, an ergonomic adjustment to equipment or workspace, or a transfer to an open position for which the employee is otherwise qualified.
The ADA does not require employers to create positions that do not exist, to hold a job open indefinitely, or to provide accommodations that impose an undue hardship on the business. But an employer who refuses to engage in the accommodation process — or who fires a worker rather than explore reasonable modifications — may face significant legal exposure. If you believe your employer is refusing to accommodate a disabling work injury, you have the right to file a charge with the Equal Employment Opportunity Commission (EEOC) or the Illinois Department of Human Rights.
What About Separation Agreements and Resignations?
In some cases, an employer or its insurance company will ask an injured worker to sign a separation agreement and resign as a condition of settling the workers’ compensation case. This warrants careful scrutiny before any document is signed.
If the worker is genuinely unable to return to work due to the severity of the injury, resigning may be a practical arrangement that makes sense for both sides. But if the worker is medically cleared to return, and the employer insists on a resignation as a precondition of settlement, that demand may be worth examining with both a workers’ compensation attorney and an employment attorney to determine whether it crosses a legal line.
Workers’ compensation claims and employment-law claims can proceed separately, but decisions made in one proceeding can affect the other. Getting coordinated legal advice before signing anything is essential to protecting your full range of rights.
Legal Remedies if You Were Wrongfully Discharged
If you believe you were terminated in retaliation for filing a workers’ compensation claim, or because of a disability resulting from a work injury, several avenues of relief are available under Illinois and federal law.
A retaliatory discharge claim is brought in Illinois state court. Available remedies include reinstatement to your former position, back pay for wages lost as a result of the termination, compensation for emotional distress, and punitive damages in cases involving egregious conduct. The statute of limitations for a retaliatory discharge claim in Illinois is generally two years.
Disability discrimination charges under the ADA are filed with the EEOC, and must generally be filed within 300 days of the discriminatory act. Charges under the Illinois Human Rights Act are filed with the Illinois Department of Human Rights; effective January 1, 2025, Illinois extended the IDHR filing deadline for most discrimination charges to two years from the date of the alleged violation. These claims can result in reinstatement, back pay, and other damages, and may proceed to court following the administrative process.
FMLA interference or retaliation claims are pursued in federal court. Remedies include recovery of lost wages, liquidated damages equal to double the lost wages, and attorney’s fees. The general limitations period for FMLA claims is two years, extended to three years for willful violations.
These deadlines are strictly enforced. Missing them can permanently bar your claim, so it is important to act promptly if you believe your rights have been violated.
Protecting Your Rights After a Work Injury
If you have been injured at work and are concerned about your job, several steps can help protect your interests. Document everything — keep records of communications with your employer about your injury, your medical restrictions, and any requests you make for accommodation or modified duties. If your employer denies a request, ask for a written explanation. If you are terminated while a workers’ compensation case is pending, do not assume the termination was lawful simply because your employer provides a stated reason.
The law in this area is nuanced, and whether a termination was truly retaliatory — or whether an employer failed in its obligation to accommodate — are fact-specific questions that require careful legal analysis. An experienced Illinois workers’ compensation attorney can help you evaluate not just your workers’ compensation claim, but any related employment-law rights that may have been violated as well.
If you have been injured at work and have questions about your employment rights or your workers’ compensation claim, the attorneys at The Law Offices of Millon & Peskin, Ltd. are here to help. We represent injured workers throughout the Chicagoland area, including DuPage, Cook, Will, Kane, and Lake counties. Contact us today at 630-449-3884 for a free consultation, or visit our Wheaton workers’ compensation office to learn more about how we fight for injured workers.