Illinois Industrial Commission Emergency Order creates rebuttable presumption of compensability for Covid-19
Today (Monday, April 13, 2020), the Illinois Workers’ Compensation Commission (IWCC) voted overwhelmingly (9-0-1) to approve a new emergency rule that would create a rebuttable presumption that the workplace was the cause of a person getting the COVID-19 virus. (Click HERE to read the actual order)
In essence, this means that any employee of an “essential business” as defined in the Governor’s Executive Order (including manufacturing, distribution, and supply chain) will likely be able to obtain workers’ compensation benefits if they are diagnosed with the COVID-19 virus. With this new rule, it will be extremely difficult for employers to defend claims and prove that the worker was infected outside of work.
If an employee tests positive, the Employer must then rebut the presumption of compensability if the employee alleges workplace exposure.
Under the action, the IWCC is adding two paragraphs to Rule 930.70 regarding the Rules of Evidence that any first responder or front-line workers as defined in the Governor’s Executive Order will be presumed to have contracted the virus at the workplace.
I question the legality of this move for 2 reasons:
- The meeting is in violation of the Illinois Open Meetings Act (5 ILCS 120/2) that requires public bodies to give at least 48 hours notice in advance of a meeting.
- This change in an evidentiary rule is substantive in nature and needs legislative approval. State agencies cannot make substantive changes through the rulemaking process.
Once filed with the Secretary of State’s Office, this rule will go into effect and remain in place for 150 days.
BUSINESSES COVERED BY THIS ORDER
This Illinois order applies to 2 sets of employers. First, it applies to First Responders:
“In any proceeding before the Commission where the petitioner is a COVID-19 First
Responder or Front-Line Worker as defined in Section (a)(2), if the petitioner’s injury
or period of incapacity resulted from exposure to the COVID-19 virus during a
COVID-19-related state of emergency, the exposure will be rebuttably presumed to
have arisen out of and in the course of the petitioner’s COVID-19 First Responder or
Front-Line Worker employment and, further, will be rebuttably presumed to be
causally connected to the hazards or exposures of the petitioner’s COVID-19 First
Responder or Front-Line Worker employment.”
Secondly, and most importantly, this order applies to vast majority of businesses that are currently operating in Illinois as “Essential Businesses”:
(2) The term “COVID-19 First Responder or Front-Line Worker” means any individuals
employed as police, fire personnel, emergency medical technicians, or paramedics
and all individuals employed and considered as first responders, health care providers
engaged in patient care, correction officers, and the crucial personnel identified under
the following headings in Section 1 Part 12 of Executive Order 2020-10 dated March
20, 2020:
- “Stores that sell groceries and medicine”;
- “Food, beverage, and cannabis production and agriculture”;
- “Organizations that provide charitable and social services”;
- “Gas stations and businesses needed for transportation”;
- “Financial institutions”;
- “Hardware and supplies stores”;
- “Critical trades”;
- “Mail, post, shipping, logistics, delivery, and pick-up services”;
- “Educational institutions”;
- “Laundry services”;
- “Restaurants for consumption off-premises”;
- “Supplies to work from home”;
- “Supplies for Essential Businesses and Operations”;
- “Transportation”;
- “Home-based care and services”;
- “Residential facilities and shelters”;
- “Professional services”;
- “Day care centers for employees exempted by [Executive Order 2020-10]”;
- “Manufacture, distribution, and supply chain for critical products and industries”;
- “Critical labor union functions”;
- “Hotels and motels”; and
- “Funeral services”.
(Emphasis added)
So…this executive order creates a presumption that any employee who tests positive for Covid-19 who is currently working in the above-referenced industries would be entitled to workers compensation benefits under the Illinois Workers Compensation Act.
As I note, an executive order cannot change the statute without legislative action. However, since Illinois case law already specifies that direct proof of exposure is not required, and the claimant must merely demonstrate an increased risk of exposure to prove compensability, this order merely states what would have most likely been the legal analysis by the Commission even the absence of the order.
If you have any questions about this or if you wish to discuss this greater detail, please call or email. (636) 532-0300 or [email protected]