This blog was updated on April 28, 2020 in the blog, “Avoiding the avalanche for now: Court Issues temporary restraining order barring Illinois Workers’ Compensation Commission’s emergency amendment.

As of April 16, 2020, the Illinois Workers’ Compensation Commission has created a rebuttable presumption that, for any essential employee who contracts COVID-19 and later files for workers’ compensation for those injuries, that employee’s injuries will be presumed to have arisen out of, and be causally connected to, their employment.

Claiming authority under the Illinois Workers’ Compensation Act and the Illinois Workers’ Occupational Diseases Act, the Illinois Workers’ Compensation Commission unilaterally issued an emergency amendment extending the protections to persons deemed “essential workers” amidst the ongoing the COVID-19 crisis. Under this emergency amendment, in any proceeding before the commission in which the petitioner is a COVID-19 “first responder” or “front-line worker”, if the petitioner’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus during the Illinois Gubernatorial Disaster Proclamation 2020-38 and any subsequent COVID-19 disaster proclamations, 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. Further, the exposure 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.

The amendment further defines COVID-19 “first responders” and “front-line workers” as “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, 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.”  Taking these sections of Executive Order 2020-10 into account, this rebuttable presumption would apply to a wide range of workers including grocery store employees, food beverage, and cannabis production workers, and even employees of financial institutions such as banks, currency exchanges, consumer lenders, and title companies.

The commission held an emergency telephonic hearing on April 15, 2020 to address this amendment. The hearing included over 400 participants and was rife with technological issues one might expect from a 400-person conference call. Though hindered by the technological limitations of this the hearing, the commission allowed attendees a limited time to comment orally. Many attendees voiced their opposition to the amendment and questioned whether the commission possessed the constitutional authority to pass it.

Commission Chairman Michael Brennan stated that the rule would be effective as of April 16, 2020 as the commission did not believe it had the capacity to pass a retrospective rule, and that only the COVID-19 injuries from April 16, 2020 onwards would qualify for coverage under this emergency amendment. Chairman Brennan further noted that the emergency amendment would initially be in effect for a maximum of 150 days. Interested parties will have the opportunity to submit written comments regarding the amendment. In addition, the commission indicated they may consider creating a committee of both labor and management to consider future rulemaking that addresses issues rising during future pandemics.

While the Illinois Workers’ Compensation Commission has the authority to create certain procedural rules, it is unclear whether they may implement and enforce this emergency amendment. The creation of similar rebuttable presumptions has typically fallen within the purview of the Illinois legislature; the Illinois Workers’ Compensation Act already contains provisions creating similar rebuttable presumptions for firefighters, emergency medical technicians, and paramedics for any condition or impairment of health which results “directly or indirectly from any blood-borne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer resulting in any disability (temporary, permanent, total, or partial) to the employee…”

This amendment will almost inevitably result in more claims and costs for business owners and insurance companies. Given these increased costs and questions over whether this emergency amendment can withstand legal scrutiny, we are expecting there to be a fair amount of pushback against it. We will continue to monitor the situation as it develops.

Other states have opted for the legislative route. My colleague Becca Levine wrote about the efforts in Ohio in this Employer Law Report blog.

Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.