Emergency Amendment to Workers’ Compensation Rules Addressing First Responders and Front-Line Workers Sickened By COVID-19 Repealed

On Monday, April 27, 2020, the Illinois Workers' Compensation Commission unanimously repealed the emergency rule amendment discussed below, after a Sangamon County, Illinois judge granted a temporary restraining order prohibiting its enforcement. Governor Pritzker, certain legislators and union organizations have expressed interest in passing a bill enacting similar measures. We will provide an update if any such action occurs.

---

On April 13, 2020, the Illinois Workers’ Compensation Commission announced an emergency amendment to its Rules of Evidence under Section 9030.70(a) to address issues related to COVID-19 first responders and front-line workers. This rule was announced without legislative approval or notice. Once the rule is filed, it will remain in effect for 150 days (into September 2020).

This amendment creates a rebuttable presumption that, for purposes of a workers’ compensation claim:

• Any COVID-19 First Responder or Front-Line Worker injured or incapacitated due to exposure to COVID-19 during a COVID-19-related state of emergency contracted the virus in the course and scope of their employment, and
• The virus is causally connected to the hazards or exposures of the claimant’s employment.

This rule goes beyond the scope of traditional workers’ compensation claims, which typically address only injuries, to also encompass incapacitation due to exposure to COVID-19.

“COVID-19 First Responder or Front-Line Worker” encompasses police, fire personnel, emergency medical technicians or paramedics, as well as crucial personnel as set forth in most headings under Section 1, Part 12 of Executive Order 2020-10 (March 20, 2020).

Therefore, this includes employees of essential businesses, including:

• 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 supplies stores;
• Critical trades;
• Mail, post, shipping, logistics, delivery, and pick-up 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;
• Day care centers for employees exempted by [Executive Order 2020-10];
• Manufacture, distribution, and supply chain for critical products and industries;
• Critical labor union functions;
• Hotels and motels; and
• Funeral services.

The new rule does not distinguish between different risks associated with different industries, and nor does it distinguish between those workers who may be working from home (though these designated categories are less likely to have such employees).

A rebuttable presumption is not an automatic conclusion, but it does place additional burdens on employers to establish a non-workplace causation in COVID-19 workers’ compensation claims. Especially given the lack of widespread and available testing, establishing when and where a claimant was exposed or actually contracted the virus can be very difficult. Yet, rather than simply accept such claims, employers should prioritize these claims and investigate as needed in order to make a determination that is both accurate and fair. Clients should contact our Labor and Employment Group for assistance in addressing these claims or for creating a plan in anticipation.