On April 15, 2020, the Illinois Workers’ Compensation Commission issued an emergency amendment creating a rebuttable presumption that, for any essential employee who files for COVID-19 related injuries, those injuries will be presumed to have arisen out of and be casually connected to their employment. You can read more about this amendment and its effects in our prior blog post. As we expected, challenges to the validity of this amendment have already begun.

As of Wednesday, April 22, 2020, two organizations – the Illinois Retail Merchants Association and the Illinois Manufacturer’s Association – have petitioned a Sangamon County judge to prevent the Illinois Workers’ Compensation Commission from implementing the emergency amendment. This challenge was anticipated, as representatives from both organizations spoke out against the amendment during the commission’s emergency telephonic hearing on April 15, 2020.  The organizations filed suit against the Illinois Workers’ Compensation Commission seeking a preliminary injunction and temporary restraining order against the amendment and alleging that the amendment, if implemented, would put the entire onus on employers to prove that their employees’ COVID-19 injuries did not arise from their employment. This would place a substantial burden on employers since COVID-19 is highly contagious, making it difficult to pinpoint the exact point of contact from which it spread.

As mentioned in our previous blog post regarding this amendment, there is a legitimate question as to whether the amendment can withstand constitutional muster. While the Administrative Procedure Act empowers the Illinois Workers’ Compensation Commission to create procedural rules for hearings before the commission, substantive changes to statutes must be done in accordance with the Illinois Constitution, which requires such changes to pass through the Illinois General Assembly before being signed into law by the governor. The commissions’ amendment creates a bona fida issue regarding the separation of powers under the Illinois Constitution, and the court entered a written order granting a temporary restraining order against the amendment.

For now, it appears that questions regarding the amendment’s constitutionality will have to wait. The cause came before the court on April 23, 2020, where the court granted the plaintiffs’ request for an injunction and entered a temporary restraining order barring the emergency amendment. As of April 25, 2020, representatives from Gov. J.B. Pritzker’s office announced that the commission will withdraw the emergency amendment for now, though Gov. Pritzker stated that the panel will revisit the amendment and attempt to reissue an order. If the newly submitted order is anywhere close to as expansive as the first, we expect similar questions of constitutionality to arise. We will continue to monitor the situation as it develops.

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