On April 15, 2020 the Illinois Workers' Compensation Commission held an emergency meeting that was open to the general public via teleconference to address emergency amendments to the Rules of Practice in response to the COVID-19 pandemic.
The meeting was conducted by the Chairman of the Illinois Workers' Compensation Commission, Michael Brennan. He began by explaining that the purpose of the meeting was to correct and make necessary changes to the emergency rules the Commission passed and issued on April 13, 2020. He indicated that it was also intended to provide 48 hour notice to the general public and provide the opportunity for general comment.
Chairman Brennan then read text from the Worker's Compensation Commission Notice Of emergency Amendments to be published in the Illinois Register.
Paragraph nine of the notice titled "reason for emergency" states as follows:
The rapid spread of COVID-19 and uncertainty created within regulated industry has necessitated the modification of evidentiary rules regarding practice before the Commission to ensure first responders and essential front-line workers, who are most susceptible to exposure to COVID-19, or for the full protections of the Worker's Compensation Act in the event they are exposed to or contracted the virus.
Due to the unprecedented and extreme exigencies created by the nature and timeline of the spread of Covid-19, owing to the normal proposed rulemaking process under section 5-40 of the Illinois administrative procedure act (5 ILCS 100/5-40) would create the potential for causing irreparable and irreversible harm to the public interest, public safety, and public welfare. Without the passage of this emergency rule, the uncertainty associated with the prior rules may put an individual in the untenable position of balancing their need to receive a continued paycheck to support their family and making the correct decision to miss work and self-isolate and self-quarantine. Without the emergency rule, individuals may feel forced to act against the public interest, potentially creating an even more dire hazard than the state already faces. There is also the further potential that an individual who is a first responder or essential front-line worker and is capable of providing essential services may choose to miss work or to temporarily withdraw from the workforce out of fear of contracting the virus and being uncertain whether or not they would be afforded the protections of the Worker's Compensation Act-protections that every working Illinois in deserves to be confident in and reassured by.
The rule is written to be narrowly tailored to only apply to those people who were first responders or essential front-line workers, to only apply to their employment as first responders or essential front-line workers, and to only apply to exposures that occur during a COVID-19 related state of emergency declared by the governor. Further, the emergency rule does not guarantee or assure of an award of benefits to an individual who suspects he or she has contracted COVID-19 or self-isolate and self-quarantines due to an alleged or suspected exposure to COVD-19, but, instead, creates a reasonable rebuttable presumption that a first responder or front-line worker’s exposure to the virus is connected to their employment.
The emergency rule does not create or diminish any substantive rights of any party, but, instead, speaks to the rules of evidence and procedural rules to be followed by the commission's hearing officers for carrying out the duties imposed upon the commission in the conduct of hearings.
It is Evans & Dixon’s opinion that the above referenced text is not the law or the rule. It is intended to serve as the reason or thought process behind the Commission's passing of the emergency amendments to the rules of practice.
A few things to note about this thought process are:
· The clear intention of the Commission is to try and protect “essential employees” as defined in the Governor’s March 20th order declaring a state of emergency, that have been exposed to or been diagnosed with COVID-19. It is also designed to encourage employees that might have been exposed to COVID-19 not to take any chances and return to the work place, thus potentially further spreading the virus. It is also to encourage needed employees to continue to report for work during this pandemic without fear that they would not be covered from exposure or diagnosis of COVID-19.
· As Thomas Edison once said: “A good intention, with a bad approach, often leads to a poor result.”
· While the Commission indicated that this applied only to first responders or essential front-line workers, this might not be the case. For example, this emergency rule could potentially apply to an employee at a recreational cannabis dispensary or to financial institution employee working from home. That will be explained further below.
· The Commission appears to anticipate the potential argument that this emergency rule essentially creates substantive law, and accordingly specifically stated that this rule does not create or diminish any substantive right of any party, but instead has solely to do with the rules of evidence and procedure. The Commission’s interpretation of their rule is not the law. That is a matter which would be determined by the Illinois courts.
The emergency rules state:
In any proceeding before the Commission in which the petitioner is a COVID-19 first responder or frontline worker as defined in section (a)(2), if the petitioner's injury, occupational disease or period of incapacity resulted from exposure to the COVID-19 virus during the gubernatorial disaster proclamation 2020-38 and any subsequent COVID-19 disaster proclamations, 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 frontline worker employment and, further, will be rebuttable he presumed to be causally connected to the hazards or exposures of the petitioner's COVID-19 first responder or frontline worker employment.
It appears the main difference between this form of the rule and the one initially passed on April 13, was the addition of the phrase "occupational disease”. Essentially, the Commission cleaned up the first version.
The term "COVID-19 of first responder or frontline worker" means any individuals employed as police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, healthcare providers engage in patient care, corrections officers, and the crucial personnel identified under Section 1 parts 7, 8, 9, 10, 11, and 12 of Executive Order 2020-10 dated March 20, 2020.
It appears the main difference between this form of the rule and the one initially passed on April 13 is that rather than list the "crucial personnel" identified under Section 1 parts 7, 8, 9, 10, 11 and 12, is that they simply refer to the executive order itself without specifically list every business, trade, industry, etc. The Governor’s order provided an extremely comprehensive list of different occupations and businesses. Furthermore, there is no guidance in the Commission’s order to determine what this rule means by the phrase “crucial personnel”. It could be argued that all business and occupations listed in the Governor’s emergency order are “crucial personnel”.
A few of the significant points to note from these emergency rules are:
· During the period of open comment, Francis O'Byrne of our firm, inquired about the effective date of this rule. The Chairman indicated that he believes the effective date is April 16, 2020 and that it does not have retrospective application. That means that this order can only affect dates of accident from April 16, 2020 forward. Furthermore this emergency rule can only be in effect for 150 days. That means the exposure or accident date alleged must be sometime between April 16, 2020 through the last date of the Governors disaster proclamation, not to exceed 150 days, which would be September 12, 2020.
· There could also be an argument that as the Commission has indicated these rules apply to evidence and procedure, that they are applicable solely with regard to trials and do not create a substantive claim or date of accident. This would appear to be an unlikely interpretation of the rule. However, it could be a precursor of a plan by the Illinois Legislature to formally pass legislation addressing these issues. In the meantime, the Rule could act as a “bridge” in the event that any emergency trial takes place before new legislation is passed. We will be watching for any new developments.
· Based on comments made by the Chairman, it does appear the Commission's intent is to not only cover cases involving a confirmed COVID-19 diagnosis, but also to cover exposure to the virus which would include missed time from work during self-quarantine. This rule would thus potentially give rise to benefits related to the perception of the diagnosis rather than the actual diagnosis itself. Such an interpretation could be beyond the scope of the Act.
· We believe there is a question as to whether this rule is constitutional and within the statutory authority of the Commission as it arguably creates a substantive right, despite the Commission’s statement otherwise. As Abraham Lincoln once said: “How many legs does a dog have if you call a tail a leg? Four, because calling a tail a leg does not make it a leg.” Similarly calling something a procedural rule does not make it a procedural rule.
· As noted in our memorandum of April 14, 2020, there are two potential ways to challenge the rule: 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). Ironically, Chairman Brennan was a member of the Attorney General’s office involved in the defense of the Commission in the Berrios case.
· Although at this point it appears to be far-reaching, one could potentially argue that these rules could support a psychological stress claim based on the following verbiage:” if the petitioner's injury, occupational disease or period of incapacity resulted from exposure to the COVID-19 virus” If any individual alleges PTSD or psychological trauma due to COVID 19 exposure there could be a rebuttable presumption that it is causally related. While this might not necessarily have been the intention of the Commission, it could be an unfortunate byproduct of trying to rush this through so quickly. Such claims may result in judicial re-examination of the holding in Pathfinder v. Industrial Commission, 343 N.E.2d 913, 62 Ill.2d 556 (1976), that in order to be compensable, mental/mental injuries require “a sudden severe emotional shock traceable to a definite time, place and cause.”
In terms of best practices we suggest the following:
1. This rule (if valid) creates a rebuttable presumption of compensability. That means the employer can present evidence demonstrating why the exposure or presumption of exposure did not arise out of, was not in the course of work was not causally related to the employment. Therefore if there is any question about the validity of a claim, a thorough and prompt investigation needs to be performed immediately.
2. As we previously noted in our memo of April 14, 2020, if the case appears to be clearly compensable on its face, there is no need to discuss the validity of this particular rule. We continue to advocate taking each situation on a case by case basis.
3. If the case is questionable, a determination will need to be made on whether to challenge the validity of the rule. We suspect that a challenge of the rule will be brought forth quickly. Until that time, we would evaluate each situation on a case by case basis. We would also keep in mind the old saying that bad facts make bad law.
4. If the rules are valid we would argue that they only apply to claims occurring on or after April 16, 2020 and do not apply to the effective date of the Governors disaster proclamation of March 20, 2020.
5. Finally, it should be remembered that an employee can allege a COVID-19 related exposure or accident for a date before or after the rules. If the date falls outside of the rules they would simply lose the advantage of the rebuttable presumption and need to prove it like any other case.
There were some other interesting points to note from the public meeting:
In order for the Rule to be passed, there needed to be a vote by all nine Commissioners. The Commissioners are divided as follows:
3 representatives of employees: Thomas Tyrell, Douglas McCarthy, Marc Parker
3 representatives of employers: Kathryn Doerries, L. Elizabeth Coppoletti, Deborah Simpson
3 representatives of the public: Maria Portella, Stephen Mathis, Barbara Flores
The vote was passed 8 to 0 with one abstention. Commissioner Coppoletti, the employer representative, made a statement that she would not vote on the proposed rules and questioned the validity of them. Commissioner Doerries, employer representative, stated that in the future there should be a committee formed to address these types of issues in the event of any emergencies or pandemics. However, she did vote in favor of the passage of the rules.
· Mark Denzler, President and CEO the Illinois Manufacturers Association, made a statement objecting to the rule and also noted that employers in the state of Illinois were not consulted with regard to this rule change.
· There was a very interesting question raised as to whether these claims would impact employers experience mods and the Chairman indicated that he could not provide an answer to that issue.
We have listed below the categories referenced in 9030.70(a)(2) as the crucial personnel identified under Section 1 parts 7, 8, 9, 10, 11, and 12 of Executive Order 2020-10 dated March 20, 2020. We are not confirming that all of the employees listed below are covered by this order. It appears to be a rather nebulous issue open to the definition of “crucial personnel”.
7. Healthcare and Public Health Operations.
For purposes of this Executive Order, individuals may leave their residence to work for or obtain services through Healthcare and Public Health Operations.
Healthcare and Public Health Operations includes, but is not limited t hospitals; clinics; dental offices; pharmacies; public health entities, including those that compile, model, analyze and communicate public health information; pharmaceutical, pharmacy, medical device and equipment, and biotechnology companies (including operations, research and development, manufacture, and supply chain); organizations collecting blood, platelets, plasma, and other necessary materials; licensed medical cannabis dispensaries and licensed cannabis cultivation centers; reproductive health care providers; eye care centers, including those that sell glasses and contact lenses; home healthcare services providers; mental health and substance use providers; other healthcare facilities and suppliers and providers of any related and/or ancillary healthcare services; and entities that transport and dispose of medical materials and remains.
Specifically included in Healthcare and Public Health Operations are manufacturers, technicians, logistics, and warehouse operators and distributors of medical equipment, personal protective equipment (PPE), medical gases, pharmaceuticals, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products.
Healthcare and Public Health Operations also includes veterinary care and all healthcare services provided to animals.
Healthcare and Public Health Operations shall be construed broadly to avoid any impacts to the delivery of healthcare, broadly defined. Healthcare and Public Health Operations does not include fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, and similar facilities.
8. Human Services Operations.
For purposes of this Executive Order, individuals may leave their residence to work for or obtain services at any Human Services Operations, including any provider funded by the Illinois Department of Human Services, Illinois Department of Children and Family Services, or Medicaid that is providing services to the public and including state-operated, institutional, or community-based settings providing human services to the public.
Human Services Operations includes, but is not limited t long-term care facilities; all entities licensed pursuant to the Child Care Act, 225 ILCS 10, except for day care centers, day care homes, group day care homes, and day care centers licensed as specified in Section 12(s) of this Executive Order; residential settings and shelters for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness; transitional facilities; home-based settings to provide services to individuals with physical, intellectual, and/or developmental disabilities, seniors, adults, and children; field offices that provide and help to determine eligibility for basic needs including food, cash assistance, medical coverage, child care, vocational services, rehabilitation services; developmental centers; adoption agencies; businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged individuals, individuals with physical, intellectual, and/or developmental disabilities, or otherwise needy individuals.
Human Services Operations shall be construed broadly to avoid any impacts to the delivery of human services, broadly defined.
9. Essential Infrastructure.
For purposes of this Executive Order, individuals may leave their residence to provide any services or perform any work necessary to offer, provision, operate, maintain and repair Essential Infrastructure.
Essential Infrastructure includes, but is not limited t food production, distribution, and sale; construction (including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, and housing construction); building management and maintenance; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical (including power generation, distribution, and production of raw materials); distribution centers; oil and biofuel refining; roads, highways, railroads, and public transportation; ports; cybersecurity operations; flood control; solid waste and recycling collection and removal; and internet, video, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).
Essential Infrastructure shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined.
10. Essential Governmental Functions.
For purposes of this Executive Order, all first responders, emergency management personnel, emergency dispatchers, court personnel, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support Essential Businesses and Operations are categorically exempt from this Executive Order.
Essential Government Functions means all services provided by the State or any municipal, township, county, subdivision or agency of government and needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety and welfare of the public, and including contractors performing Essential Government Functions. Each government body shall determine its Essential Governmental Functions and identify employees and/or contractors necessary to the performance of those functions.
This Executive Order does not apply to the United States government. Nothing in this Executive Order shall prohibit any individual from performing or accessing Essential Governmental Functions.
11. Businesses covered by this Executive Order.
For the purposes of this Executive Order, covered businesses include any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function it performs, or its corporate or entity structure.
12. Essential Businesses and Operations.
For the purposes of this Executive Order, Essential Businesses and Operations means Healthcare and Public Health Operations, Human Services Operations, Essential Governmental Functions, and Essential Infrastructure, and the following:
a. Stores that sell groceries and medicine. Grocery stores, pharmacies, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, and other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, alcoholic and non-alcoholic beverages, and any other household consumer products (such as cleaning and personal care products). This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, and also that sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and Essential Businesses and Operations;
b. Food, beverage, and cannabis production and agriculture. Food and beverage manufacturing, production, processing, and cultivation, including farming, livestock, fishing, baking, and other production agriculture, including cultivation, marketing, production, and distribution of animals and goods for consumption; licensed medical and adult use cannabis dispensaries and licensed cannabis cultivation centers; and businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, shelters, kennels, and adoption facilities;
c. Organizations that provide charitable and social services. Businesses and religious and secular nonprofit organizations, including food banks, when providing food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities;
d. Media. Newspapers, television, radio, and other media services;
e. Gas stations and businesses needed for transportation. Gas stations and autosupply, (sic) auto-repair, and related facilities and bicycle shops and related facilities;
f. Financial institutions. Banks, currency exchanges, consumer lenders, including but not limited, to payday lenders, pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products;
g. Hardware and supply stores. Hardware stores and businesses that sell electrical, plumbing, and heating material;
h. Critical trades. Building and Construction Tradesmen and Tradeswomen, and other trades including but not limited to plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses and Operations;
i. Mail, post, shipping, logistics, delivery, and pick-up services. Post offices and other businesses that provide shipping and delivery services, and businesses that ship or deliver groceries, food, alcoholic and non-alcoholic beverages, goods or services to end users or through commercial channels;
j. Educational institutions. Educational institutions—including public and private pre-K-12 schools, colleges, and universities—for purposes of facilitating distance learning, performing critical research, or performing essential functions, provided that social distancing of six-feet per person is maintained to the greatest extent possible. This Executive Order is consistent with and does not amend or supersede Executive Order 2020-05 (COVID-19 Executive Order No. 3) or Executive Order 2020-06 (COVID-19 Executive Order No. 4) except that affected schools are ordered closed through April 7, 2020;
k. Laundry services. Laundromats, dry cleaners, industrial laundry services, and laundry service providers;
l. Restaurants for consumption off-premises. Restaurants and other facilities that prepare and serve food, but only for consumption off-premises, through such means as in-house delivery, third-party delivery, drive-through, curbside pick-up, and carry-out. Schools and other entities that typically provide food services to students or members of the public may continue to do so under this Executive Order on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis only. Schools and other entities that provide food services under this exemption shall not permit the food to be eaten at the site where it is provided, or at any other gathering site due to the virus’s propensity to physically impact surfaces and personal property. This Executive Order is consistent with and does not amend or supersede Section 1 of Executive Order 2020-07 (COVID-19 Executive Order No. 5) except that Section 1 is ordered to be extended through April 7, 2020;
m. Supplies to work from home. Businesses that sell, manufacture, or supply products needed for people to work from home;
n. Supplies for Essential Businesses and Operations. Businesses that sell, manufacture, or supply other Essential Businesses and Operations with the support or materials necessary to operate, including computers, audio and video electronics, household appliances; IT and telecommunication equipment; hardware, paint, flat glass; electrical, plumbing and heating material; sanitary equipment; personal hygiene products; food, food additives, ingredients and components; medical and orthopedic equipment; optics and photography equipment; diagnostics, food and beverages, chemicals, soaps and detergent; and firearm and ammunition suppliers and retailers for purposes of safety and security;
o. Transportation. Airlines, taxis, transportation network providers (such as Uber and Lyft), vehicle rental services, paratransit, and other private, public, and commercial transportation and logistics providers necessary for Essential Activities and other purposes expressly authorized in this Executive Order;
p. Home-based care and services. Home-based care for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness, including caregivers such as nannies who may travel to the child’s home to provide care, and other in-home services including meal delivery;
q. Residential facilities and shelters. Residential facilities and shelters for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness;
r. Professional services. Professional services, such as legal services, accounting services, insurance services, real estate services (including appraisal and title services);
s. Day care centers for employees exempted by this Executive Order. Day care centers granted an emergency license pursuant to Title 89, Section 407.400 of the Illinois Administrative Code, governing Emergency Day Care Programs for children of employees exempted by this Executive Order to work as permitted. The licensing requirements for day care homes pursuant to Section 4 of the Child Care Act, 225 ILCS 10/4, are hereby suspended for family homes that receive up to 6 children for the duration of the Gubernatorial Disaster Proclamation.
t. Manufacture, distribution, and supply chain for critical products and industries. Manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitization, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, petroleum and fuel, mining, construction, national defense, communications, as well as products used by other Essential Businesses and Operations.
u. Critical labor union functions. Labor Union essential activities including the administration of health and welfare funds and personnel checking on the wellbeing and safety of members providing services in Essential Businesses and Operations – provided that these checks should be done by telephone or remotely where possible.
v. Hotels and motels. Hotels and motels, to the extent used for lodging and delivery or carry-out food services.
w. Funeral services. Funeral, mortuary, cremation, burial, cemetery, and related.