Commission Issues COVID-19 Emergency Amendment

On April 13, 2020, the Commission issued an Emergency Amendment to Part 9030 of the Rules of the Illinois Workers’ Compensation Commission. The stated purpose of this Emergency Amendment is ostensibly to protect “essential employees” who could be exposed to the COVID-19 virus at work, by providing a rebuttable presumption that those workers who are diagnosed with the disease contracted the virus while working. As stated on the Commission website:

“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 front line workers, who are most susceptible to exposure to COVID-19, are afforded the full protections of the Workers’ Compensation Act in the event they are exposed to or contract the virus.”

Paragraph 10 of the Notice of the Emergency Amendment states:

“The proposed rules are designed to ensure in any case before the Workers’ Compensation Commission where any COVID-19 First Responder or Front-Line Worker, defined within the Rule, is exposed to COVID-19 during the State of Emergency, it will be rebuttably presumed that the individual’s exposure arises out of and in the course of and rebuttably presumed to be causally connected to their employment.”–2020-04-13.pdf

The full text of the Emergency Amendment can be found by clicking here.

In general terms, a “rebuttable presumption” operates to shift the normal burden of proof. Under normal circumstances, a claimant must prove all elements of his/her claim, and must submit evidence at trial which purports to prove the injury or disease in question arose out of and in the course of employment. A rebuttable presumption flips this burden by presuming that under certain circumstances, the arbitrator is to presume (without specific proof) the claimant’s injury or disease arose out of and in the course of employment. The employer then has the opportunity to “rebut” this presumption by presenting evidence the injury or disease in fact had its origin in a non-work-related accident or exposure.

Section 6(f) of the Act already provides such a rebuttable presumption for firefighters, emergency medical technicians and paramedics for any condition or “impairment of health” which results directly or indirectly “from any bloodborne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer…or hernia or hearing loss.” Section 6(f) specifically states, however, “this presumption shall not apply to any employee who has been employed as a firefighter, EMT, or paramedic for less than 5 years at the time he or she files an Application for Adjustment of Claim….” The Emergency Amendment announced by the Commission does not set forth any such limitation in terms of how long the claimant needs to have been employed with the employer in question.

Because Covid-19 is a respiratory disease, the rebuttable presumption of Section 6(f) would likely apply to firefighters, emergency medical technicians and paramedics who were employed in such capacity for at least 5 years at the time the Application for Adjustment of Claim was filed. With the amendment, the Commission essentially decided to afford a similar rebuttable presumption to those it has deemed to be “essential employees” during the COVID-19 pandemic. As a result, the breadth of employees covered by the COVID-19 rebuttable presumption is much greater than those employees covered by Section 6(f). For example, it includes coverage not only for typical “first responders” such as police, firefighters, EMTs, health care providers and correctional officers, but to a whole laundry list of potential claimants who work in various industries:

• “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”.

Interestingly, the amendment did not list members of the media, even though the Governor’s executive order previously deemed them “essential” for purposes of the stay-at-home order.

The Illinois Occupational Disease Act covers any disease “arising out of and in the course of” the employment or which has been “aggravated and rendered disabling as a result of the exposure of employment.” A disease shall be deemed to have arisen out of the employment if “there is apparent to the rational mind, upon consideration of all of the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease.” The disease need not to have been foreseen or expected, “but after its contraction it must appear to have its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence.”

As noted above, without the rebuttable presumption of the Emergency Amendment, the claimant would need to prove several elements of his/her claim, including:

1. The workplace was the specific source of the exposure; or
2. The workplace increased the risk of exposure beyond that faced by the general public.

With the operation of the rebuttable presumption, the burden will now be on the employer to establish that:

1. Somewhere other than the workplace was the source of exposure; or
2. The disease is so prevalent in the general public the workplace did not increase the risk of exposure.

For those employees who are “first responders” and therefore tasked with diagnosing, treating and otherwise caring for those patients with COVID-19, the risk of exposure is obviously great and likely beyond that faced by the general public which has been ordered to “stay at home” by government officials. For such employees, a rebuttable presumption is likely not even necessary to establish a causal relationship between the work they do and contraction of the disease.

For other industries, however, the benefit of the rebuttable presumption appears overly broad. For example, many employees of the above industries are in fact performing their work from home. Will a dispatcher of a transportation company who never sets foot in the office or on a loading dock be entitled to the same rebuttable presumption as the driver who is delivering supplies to various locations? Will an employee of a union who performs organizing activities or public relations activities on his or her home computer be entitled to the same rebuttable presumption as the shop steward on the factory floor? And, for that matter, will an attorney who is no longer interacting in person with clients, witnesses, opposing counsel or arbitrators be entitled to the rebuttable presumption because he or she continues to render “professional services” via email and the telephone?

From an evidentiary perspective, unanswered is the question as to what exactly will be required to trigger the rebuttable presumption. Is it sufficient that a claimant has been clinically diagnosed with COVID-19, based on symptoms alone, or will it be necessary the diagnosis has been confirmed by an actual test? If testing is not equally available for all patients, does this create the potential for unequal application of the presumption?

Beyond these questions, there is also the question of whether the Emergency Amendment to the Rules is constitutionally valid. The Rules of the IWCC serve as the vehicle for the administration of the Commission and the laws set forth in the Workers’ Compensation Act. They provide the rules of the road for how to file documents, conduct arbitration hearings, rules for appeals and various other activities necessary to put the laws into effect. As noted above, the only other rebuttable presumption provision is Section 6(f) of the Act, which was passed by the 98th General Assembly. This Emergency Amendment walks, talks and acts like a law, but was not passed by the General Assembly as an amendment to the Illinois Workers’ Compensation Act. The Amendment changes the substance of the law while leaving a number of questions unanswered, including does the rule apply retroactively to cases of Covid-19 diagnosed before April 13, 2020. Generally, substantive changes to the law, such as creating a rebuttable presumption, only apply prospectively and cannot be applied retroactively. Should it be challenged in court as an invalid exercise of the Commission’s powers, it remains to be seen whether it will stand up to judicial scrutiny.

From a business perspective, the operation of this Emergency Amendment also places an unanticipated risk on insurance carriers. While companies that insure health care providers certainly anticipated the occasional exposure claim to be filed by their employees, creating a rebuttable presumption for a certain class of exposure (COVID-19) increases the potential liability by easing the standard of proof, which was not taken into account during the underwriting process.

It remains to be seen whether this Emergency Amendment will be temporary or permanent in nature. In the short term, employers will need to be aware of the rebuttable presumption and defend claims accordingly. As with every claim, we recommend a full investigation when presented with a COVID-19 claim, including a thorough investigation as to whether the claimant was in fact at risk of exposure through actual contact with COVID-19 patients, or whether the claimant was actually a “back office” employee who likely had no contact with such patients. In addition, is it known whether the claimant’s family member was diagnosed prior to the claimant’s exposure?

For non-medical industries, such as grocery stores, transportation, etc., measures to reduce potential exposure with the general public have likely already been put into place, and it will be important to document such measures to rebut the presumption of exposure. And as with all claims, statements from the claimant and co-workers should be taken as soon as possible.

Finally, every claim needs to be evaluated on a case-by-case basis, taking into account all the relevant facts and circumstances. We certainly do not advocate a knee-jerk denial of benefits to those first responders and front-line employees, so long as the investigation shows by a preponderance of the evidence the exposure is more likely than not a work-related condition. But, neither do we advocate a blanket acceptance of all claims filed by those who work in the above-enumerated “essential industries,” without a thorough investigation of the claim. As always, we are here for you to render thoughtful and accurate legal advice on any claim presented to you by an employee.

We will provide further updates as such become available, and of course welcome any questions you may have on this issue.

Stay safe.

Ganan & Shapiro, P.C.