On April 13, 2020 the Illinois Workers' Compensation Commission passed an emergency amendment to the rules of practice with regard to the COVID-19 pandemic. The emergency rules are:
Rule 9030.70 (a)(2)
“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 rebuttable he 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 rebuttable to be presumed to be causally connected to the hazards or exposures of the petitioner's COVID 19 first responder or front-line worker employment.
Rule 9030.70 (a)(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 considered as first responders, healthcare providers engaged in patient care, correction officers, and the crucial personnel identified under the following headings in Section 1 Part 12 of the 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 supply stores"; "Critical trades"; "Mail, post, shipping, logistics, delivery, and pickup 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"; "Daycare centers for employees exempted by Executive Order 2020-10"; "Manufacture, distribution, and supply chain are critical products and industries"; "Critical labor union functions"; "Hotels and motels"; and "Funeral services".
The Illinois Workers' Compensation Commission website further indicates that:
"Notice is hereby given that the Illinois Workers' Compensation Commission will conduct an emergency meeting by telephonic means on Wednesday, April 15, 2020 at the hour of 4 PM. The call in number for the meeting is 888-494-4032 the passcode is 8061403017. The agenda topic for this emergency meeting is a further amendment the rules governing practice before the Illinois Workers' Compensation Commission rule 9030.70(a)(1) and 9030.70 (a)(2)”
We believe it is best to fully analyze these emergency rules after the Commission's meeting on April 15, 2020. Until then, our tentative analysis is as follows:
-The Commission has the authority to pass rules and bypass typical notice requirements pursuant to the Administrative Procedures Act, 5 ILCS 100/5-45. Under this section of the “APA”, an emergency rule may be effective for a period of not longer than 150 days, but the agency's authority to adopt an identical rule under section 5-40 is not precluded.
-The Commission's authority for general rulemaking is set forth under the Administrative Procedures Act, 5 ILCS 100/5-40. This section of the “APA” provides for a period of notice, public comment, etc.
-Given the crisis created by the COVID-19 pandemic, it appears this is indeed a legitimate emergency situation which would grant the Commission authority to pass rules under section 5 ILCS 100/5-45.
-The Commission's authority to pass rules is pursuant to Section 16 of the Illinois Workers' Compensation Act which states “ the Commission shall make and publish procedural rules and orders for carrying out the duties imposed upon it by law and for determining the extent of disability sustained, which rules and orders shall be deemed prima facie reasonable and valid.”
-An issue with the two emergency rules passed by the Commission, is whether they are within its powers as set forth in Section 16 of the Workers’ Compensation Act, or if the rules are substantive law, that is the province of the legislature. If the rules are considered to be substantive law, then these rules could potentially be unconstitutional or beyond the Commission’s statutory powers.
-It should be noted these rules create a "rebuttable presumption". That means if the employer has evidence to demonstrate that the COVID-19 diagnosis did not occur in or was not causally related to the workplace, the case could be denied on that basis.
-A problem is that Illinois does not allow discovery under the Illinois Workers' Compensation Act, making it that much more challenging for the employer to gather evidence.
-If an employer has a case that appears to be clearly compensable with regard to the COVID-19 diagnosis, then there should be no concern about the validity of this rule.
-If an employer has a legitimate question as to whether the COVID-19 diagnosis arose out of, was in the course of, and was causally related to the employment, then they would need to consider challenging the validity of these rules along with defenses on other issues.
-There are two potential options for that challenge: 1.) By a trial at the Commission where it would be raised as an issue in dispute; or 2.) By filing a declaratory action in the Circuit Court as was done in the case of Berrios v. Rybacki, 546 N.E.2d, 137 Ill.Dec. 706, 190 Ill.App.3d 338 (1st Dist, 1989).
-If there are any questions about the legitimacy of a COVID 19 claim and additional information (such as medical records) is required by the employer to review the issue, we recommend sending immediate notice to the employee and/or their representative citing rule 9110.70 and indicating that they do not have sufficient information to determine compensability.
We would suggest that if there is a case that is clearly compensable on its face, that there is no need to discuss the validity of this particular rule in that instance. We would take each situation on a case-by-case basis. While these rules could be potentially unconstitutional and overbroad in their drafting, it does not necessarily mean that every case should be viewed under that microscope. Rather, those claims that would be highly questionable no matter the circumstances, should be the ones given close scrutiny and further examination as to the validity of these rules.
This is a tentative analysis of the rules. We will provide an updated review following the Commission's meeting on April 15, 2020.
COVID-19 Accident Investigation Questions for the Claimant
Preliminarily, you will note the date in most questions reflects a date of March 20, 2020 which is the date Governor Pritzker issued an Order declaring an emergency as a result of the COVID-19 virus. That is why we have generally used that date in the questions to be posed to the claimant preferably in a Recorded Statement. If the claimant is asserting a date of accident before March 20, 2020 or after the expiration of the Governor’s Emergency Order amending the Commission Rules on April 13, 2020 all questions that are currently “March 20th” would go back to 14 days prior to the date of diagnosis. For example, if a diagnosis is made on March 6th, your questions would be premised on a date of February 20th.
1. What job activities have you performed since March 20, 2020?
2. Were you able to perform any of your job activities at home since 3/20/20?
3. If so, what activities did you perform at home and how many days did you go to your office or regular place of employment since 3/20/20?
4. When performing your job duties, did you use any personnel protective equipment? If so what did you use and how often?
5. When you were not working did you attend any church services or family gatherings with people outside of your home since March 20, 2020?
6. Did you adhere to social distancing guidelines of being more than 6 feet apart at any of these gatherings?
7. When did you attend these gatherings?
8. Have you at any time since March 20, 2020, other than when seeking your own medical treatment, been in close personal contact with anyone who works in the health filed whose job it has been to work with or assist individuals afflicted with the COVID-19 Virus?
9. Do you have any children living with you?
10. Have your children attended daycare since March 20, 2020? What was their last day of attendance?
11. When is the last date any of your children, living with you attended school in person?
12. Have any of your children living with you returned from college campus or another city recently? If so when?
13. Have you or anyone living in your home recently traveled to an area with known local spread of COVID-19?
14. Since March 20, 2020, did you ever go to any playgrounds where other non-family members were present?
15. Since March 20, 2020, did you ever travel by automobile, motorcycle, scooter, bicycle, train, or public transit? If so how many times and where were you travelling to and from?
16. Since March 20, 2020, have you or any member of your family living with you utilized any delivery services for groceries, supplies, or other products (like Amazon, Shipt, etc.? If so, when?
17. Since March 20, 2020, have you purchase any meals through a pick-up/delivery? If so, please provide the names of those restaurants and the dates you received said meals.
18. When you were not working prior to your diagnosis with COVID-19, did you ever leave your home, to secure necessary services such as groceries and food, household consumer products, supplies you need to work from home and products necessary to maintain the safety, sanitation and essential operation of residences. If so, how many times and when?
19. To your knowledge did any of the people at these gatherings develop the COVID-19 virus?
20. Have any other family members been diagnosed with COVID-19? If so when and what occupation?
21. Were any coworkers diagnosed with COVID-19? If so, who and when were they diagnosed? Primarily before or after your own diagnosis?
22. When did you first experience symptoms of being ill?
23. Prior to being diagnosed with COVID-19, did you ever experience any cardiovascular issues or were diagnosed with diabetes, Hypertension, obesity or a compromised immune system? If so, when?
24. What symptoms did you experience? As a reminder for the interviewer, potential COVID-19 symptoms include: cough, fever, tiredness, difficulty breathing (severe cases)
25. Have you been formally diagnosed with COVID-19? If so, when and by whom?
26. What is your current health status?
27. If you have recovered from COVID-19, did you receive a second test from a physician or medical provider indicating you had recovered from COVID-19? If so, where was the test conducted?
28. If you have recovered from COVID-19, are you still experiencing any physical issues or difficulties you are experiencing after having contracted the diagnosis?
29. Have you been instructed to take any further action, medications or over the counter medications as a result of having been diagnosed with COVID-19? If so, please detail?
30. Does the claimant live in a single family dwelling or multi until dwelling?
If there any questions please feel free to reach out to any member of our Illinois Workers' Compensation team. We are always happy to provide advisory opinions and advice.