On May 22, 2020 the Illinois legislature passed an amendment to the Workers Occupational Diseases Act essentially doing what the Workers’ Compensation Commission was not constitutionally able to do: create a rebuttable presumption of compensability for certain essential/front-line employees diagnosed with COVID-19.
It is our understanding that this was an agreed bill process. Unlike the emergency rule proposed by the Commission before it was ultimately withdrawn in the face of litigation, this legislation had the input of business. This legislation is not as expansive or "one-sided" as was the since withdrawn emergency rule previously proposed by the Commission.
The legislature amended section 1(g) of the Workers Occupational Diseases Act to state as follows:
"In any proceeding before the Commission in which the employee is a COVID-19first responder or frontline worker as defined in section (g)(2)… If the employees injury or occupational disease resulted from exposure to and contraction of the COVID-19 virus, the exposure and contraction shall be rebuttably presumed to have arisen out of it in the course of the employees first responder or frontline worker employment and the injury or occupational disease shall be rebuttably presumed to be causally connected to the hazards or exposures of the employees first responder or frontline worker employment."
In order for the presumption to apply at trial, there must be a COVID-19 diagnosis occurring on or before June 15, 2020. An employee must provide a confirming medical diagnosis from a licensed medical practitioner or a positive laboratory test for COVID-19 or for COVID-19 antibodies. For COVID-19 diagnosis occurring on or after June 16, 2020, employee must provide a positive laboratory test for COVID-19 or COVID-19 antibodies. It appears the purpose of this provision is to allow the presumption to apply to cases where the diagnosis might have been solely based on the opinion of a licensed medical practitioner. We would presume that most likely has something to do with the lack of testing early on in the pandemic and the assumption access to testing will no longer be an issue as of June 16, 2020.
The rebuttable presumption in section (g)(1) shall apply to all future cases tried where the diagnosis of COVID-19 is made on or after March 9, 2020 and on or before December 31, 2020. Thus, this is a retroactive piece of legislation.
One of the key differences between this amendment and the prior emergency rule is the requirement of a diagnosis of COVID-19 to have been made. The presumption will not apply to mere exposure or suspicion that someone has COVID-19. Furthermore, this rule provides specific limitations with regard to the employees that it covers. Employees identified for coverage are as follows:
· All individuals employed as police, fire personnel, emergency medical technicians or paramedics.
· All individuals employed and considered as first responders.
· All workers for healthcare providers, including nursing homes and rehabilitation facilities and home care workers.
· Corrections officers.
· Any individuals employed by essential businesses and operations as defined in executive order 2020-10 dated March 20, 2020, as long as individuals employed by essential businesses and operations are required by their employment to encounter members of the general public or to work and employment locations of more than 15 employees.
· It is noted that for purposes of this section, an employee's home or place of residence is not a place of employment, except for home care workers.
Thus, the scope of employees is far more limited than the previously proposed Commission emergency rule. For example, the prior rule covered all employees deemed essential under the Governor's order of March 20, 2020; such a definition could have included individuals working at home, individuals working without exposure to the general public, or even individuals working by themselves.
The presumption may be rebutted by evidence including, but not limited to, the following:
· The employee was working from his or her home, on leave from his or her employment, or some combination thereof, for a period of 14 or more consecutive days immediately prior to the employee’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus.
· The employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability industry-specific workplace sanitation, social distancing, and health and safety practices based on updated guidance by the CDC or Illinois Department of Public Health or was using a combination of administrative controls, engineering controls, or personal protective equipment to reduce the transmission of COVID-19 to all employees for at least 14 consecutive days prior to the employees injury, occupational disease or period of incapacity resulting from exposure to the COVID-19 virus.
For purposes of this subsection "updated" means the guidance IN effect at least 14 days prior to the COVID-19 diagnosis. For purposes of this subsection, "personal protective equipment" means industry-specific equipment worn to minimize exposure to hazards or cause illnesses or serious injuries, which may result from contact with biological, chemical, radiological, physical, electrical, mechanical, or other workplace hazards. "Personal protective equipment" includes, but is not limited to items such as face coverings, gloves, safety glasses, safety face shields, barriers, shoes, ear plugs or muffs, hardhats, respirators, coveralls, vest and full body suits.
· The employee was exposed to the COVID-19 virus by an alternate source.
This presumption does not apply if the employee's place of employment was solely the employee's home or residence for a period of 14 or more consecutive days immediately prior to the employees injury, occupational disease, or curative incapacity resulted from exposure to the COVID-19 virus.
The date of injury is either the date that the employee was unable to work due to contraction of COVID-19 or was unable to work due to symptoms that were later diagnosed, whichever came first.
Employers were granted the following relief:
· Employers are entitled to a credit against any liability for temporary total disability due to the employee as a result of the employee contracting COVID-19 for (1) any sick leave benefits or extended salary benefits paid to the employee by the employer under emergency family medical leave expansion act, emergency paid sick leave act of the families first corona virus response act, or any other federal law, or (2) any other credit to which an employer is entitled under the Worker's Compensation Act.
· Under no circumstances shall any COVID-19 case increase or affect and employer's Worker's Compensation insurance experience rating or modification, but COVID-19 cost may be included in determining overall state loss cost. Thus, the state is trying to protect employers from increased insurance premiums due to a potential COVID-19 cluster outbreak.
The Illinois Appellate Court has provided an explanation as to how a rebuttable presumption works. In Johnston v. Illinois Worker's Compensation Commission, 80 N.E.3d 573, 414 Ill.Dec. 430 (2nd Dist. 2017) the Court stated a rebuttable presumption may create a prima facie case as to the particular issue in question and thus has a practical effect of requiring the party against whom it operates to come forward with evidence to meet the presumption. Once evidence opposing the presumption comes into the case, the presumption ceases to operate, and the issue is determined on the basis of the evidence adduced at trial as if no presumption had ever existed. The burden of proof thus does not shift but remains with the party who initially had the benefit of the presumption. As the court further noted, once evidence has been presented to rebut the presumption, the metaphorical bubble bursts and the trier of fact must then consider the evidence presented in the case as if the presumption had never existed.
As with any case, a solid investigation is going to be the key to a defense. In order to overcome the rebuttable presumption, evidence must be presented to make this a question of credibility for the trier of fact. We have recommendations for a detailed COVID-19 investigation posted on our website. Additionally, we will have available (similar to our WC benefit rate sheet), laminated copies of the investigation recommendations along with medical information concerning COVID-19 for a quick desktop reference. If you would like a copy of the laminated COVID-19 desktop reference please contact Amy Haller at firstname.lastname@example.org
It should also be remembered other employees not covered by this piece of legislation could still have claims for COVID-19. If they do not fit within one of the defined groups of employees in this legislation, the difference is simply that they do not have the rebuttable presumption at the onset of their case.
As Illinois slowly begins to reopen, we anticipate there could be an influx of COVID-19 claims. Please contact any of our attorneys for assistance or if you have any questions. Again, early investigation is the best defense.