Amendments to Illinois Municipal Code Provide New Limitations and Requirements Involving Disabled Police Officers

A new law will limit the actions a municipal employer can take against a police officer seeking disability benefits and elevate the role the police pension fund board will play in determining whether officers who have recovered from disability are fit for duty as they are returned immediately to the municipal payroll. On August 9, 2024, Governor Pritzker signed into law P.A. 103-929, which amends several provisions of the Illinois Municipal Code and will go into effect January 1, 2025. P.A. 103-929 makes several important revisions to current law involving disabled police officers that are similar to provisions that have been in state law for firefighters since 2007. Both municipalities and police pension fund boards will need to understand the implications of these statutory changes for their respective roles in the return to active service process for officers.

Prohibition on Basing Discharge of Police Officer on Reason Related to Disability Application

Under P.A. 103-929, two new sections in the Illinois Municipal Code will apply to disabled police officers that echo a similar provision applicable to firefighters in Article 4 of the Illinois Pension Code. Specifically, under Section 4-112 of the Illinois Pension Code, municipalities and fire protection districts are prohibited from using as a “cause for discharge” any “physical or mental disability that constitutes, in whole or in part, the basis of [a firefighter’s] application for benefits.” (40 ILCS 5/4-112)

New provisions in the Illinois Municipal Code – Sections 10-1-18.3 (Civil Service Commission provision) and 10-2.1-17.5 (Boards of Fire and Police Commissioners provision) – will now provide a similar prohibition regarding police officers:

A physical or mental disability that constitutes, in whole or in part, the basis of an application for benefits under Article 3 of the Illinois Pension Code may not be used, in whole or in part, as a cause for a municipality to discharge a police officer. (65 ILCS 5/10-1-18.3 and 10-2.1-17.5)

Police Pension Board’s Role in Determining Recovered Officer’s “Fitness for Duty” and Return to Active Service

Under Section 4-112 of the Illinois Pension Code, firefighter pension fund boards are required to determine whether firefighters who have been receiving disability benefits have “recovered from disability” and are no longer qualified to receive those benefits (40 ILCS 5/4-112). Section 4-112 specifically provides:

Upon satisfactory proof to the board that a firefighter on the disability pension has recovered from disability, the board shall terminate the disability pension. The firefighter shall report to the marshal or chief of the fire department, who shall thereupon order immediate reinstatement into active service, and the municipality shall immediately return the firefighter to its payroll, in the same rank or grade held at the date he or she was placed on disability pension. . . [emphasis added] (40 ILCS 5/4-112)

In contrast, under Section 3-116 of the Illinois Pension Code, police pension fund boards must also “certify” that the individual is no longer disabled and is able to resume their duties (40 ILCS 5/3-116). Section 3-116 provides in applicable part:

If a police officer retired for disability, except one who voluntarily retires after 20 years’ service, is found upon medical examination to have recovered from disability, the board shall certify to the chief of police that the member is no longer disabled and is able to resume the duties of his or her position. [emphasis added] (40 ILCS 5/3-116)

With the passage of P.A.103-929, a police pension board’s certification “that a police officer is no longer disabled and is able to resume the duties of his or her position” will be required to reinstate an officer to the municipality’s payroll and into active service. Amendments to Section 10-1-47 (Civil Service Commission provision) and Section 10-2.1-24 (Boards of Fire and Police Commissioners provision) of the Illinois Municipal Code will now provide:

Section 10-1-47: “Upon the chief of the police department’s receipt of a certification under Section 3-116 of the Illinois Pension Code that a police officer is no longer disabled and is able to resume the duties of his or her position, the police officer shall report to the chief of the police department. The chief of the police department shall thereupon order immediate reinstatement into active service, and the municipality shall immediately return the police officer to its payroll, in the same rank or grade held at the date he or she was placed on a disability pension under Article 3 of the Illinois Pension Code.” (65 ILCS 5/10-1-47)

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Section 10-2.1-24: “Upon receipt of a certification under Section 3-116 of the Illinois Pension Code that a police officer is no longer disabled and is able to resume the duties of his or her position, the police officer shall then report to the chief of the police department. The chief of the police department shall thereupon order immediate reinstatement into active service, and the municipality shall immediately return the police officer to its payroll, in the same rank or grade held at the date he or she was placed on a disability pension under Article 3 of the Illinois Pension Code.” (65 ILCS 5/10-2.1-24)

Distinctions Between the Return to Duty Process for Recovered Firefighters v. Recovered Police Officers

 The amendments under P.A. 103-929 to the Illinois Municipal Code place a larger responsibility on police pension fund boards in the process of reinstating a police officer into active service after recovery from disability than firefighter pension fund boards have in the similar process for recovered firefighters, and that distinction is based on the language found in Article 3 of the Illinois Pension Code for police officers compared to the language found in Article 4 of the Illinois Pension Code for firefighters:

• Section 4-112 of the Illinois Pension Code requires the firefighter has “recovered from disability”: A firefighter pension fund board terminates a disability benefit when it has determined that a firefighter “has recovered from disability,” and its authority is limited to the question of the disability recovery and not the larger question of fitness for duty.
• Section 3-116 of the Illinois Pension Code requires the officer is “able to resume the duties of his or her position”: When a police pension fund board has determined that a police officer “is no longer disabled and is able to resume the duties of his or her position,” and its authority presumably involves the larger question of the officer’s ability to perform full police duties.

When firefighters who have recovered from disability are returned to the municipal or fire district payroll, the firefighter is typically subject to a more thorough fitness for duty evaluation before they are returned to full active service. However, the police pension fund board’s responsibility to certify the officer’s ability to resume police duties raises a question of how in depth the board’s evaluation and certification process should be. Furthermore, how does this distinction in the statutory language affect the municipality’s authority – as the employer — to determine the officer’s fitness for duty, separate from the police pension board’s certification of the officer’s abilities? As these situations arise, municipalities may need to seek intervention into the police pension fund’s process to terminate the officer’s disability benefit, to ensure the evaluation of the officer’s fitness for duty is thoroughly considered.

In order to determine whether an individual has recovered from their disability, a pension board only needs to have one medical examination conducted to support a conclusion that the officer is no longer disabled. (See Trettenero v. Police Pension Fund of City of Aurora, 333 Ill. App. 3d 792, 800 (2nd Dist. 2002) and Anderson v. Bd. of Trustees of Libertyville Police Pension Fund, 2019 IL App (2d) 180459-U, ¶ 104) While IME physicians evaluating the status of a disabled public safety officer will likely raise concerns they have regarding any obvious and apparent issues other than the condition that was the root cause of the disability for the award of the disability benefits, the medical examination and the pension board’s conclusion should focus on whether the disabling condition is still present and impairs the individual from returning to their previous role. For firefighter pension fund boards, the inquiry will end at the determination that the disabling condition is no longer present and the firefighter can therefore return to work. However, under the new provisions, police pension fund boards must be aware that their responsibilities do not end once a determination has been made that the officer has recovered from disability. Once such a conclusion has been reached, the police pension board must provide the police chief with the board’s certification that the officer is able to resume their duties.