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Illinois workers’ compensation in the time of COVID-19

As we find our way through the myriad of challenges imposed by COVID-19, Illinois faces an unresolved workers’ compensation issue – how to determine eligibility for first responders and essential workers who contract the coronavirus.

Arising out of and in the course of employment

Workers’ compensation provides benefits when an employee sustains a work-related injury or occupational illness. Eligibility requires that the disease or injury arise out of and in the course of employment. The claimant must not prove whose fault the injury or illness was – just that the requisite link between the medical problem and work is there.

So, in the current medical emergency, front line workers are going to contract the virus and get ill. When the sick employee is an emergency room doctor or nurse, an EMT or a firefighter, most of us assume that they contracted the virus during work duties that regularly expose them to coronavirus-positive individuals.

Rebuttable presumption

Following this logic, the Illinois Workers’ Compensation Commission issued an emergency rule that any first responder or front-line worker who gets COVID-19 will be rebuttably presumed to have gotten it in the course of employment. Applying this concept, the worker would not have to show they got the virus at work, but the employer or its insurer could rebut the presumption that they did with evidence that the employee did not get the virus through work.

According to the Chicago Tribune, Gov. Pritzker had asked the Commission to create the emergency rule. He said that the rule was designed to give essential workers “peace of mind to know that they will be covered if they fall ill on the job,” according to the Herald & Review.

Not so fast …

In response, the Illinois Manufacturers’ Association and the Illinois Retail Merchants Association asked the Sangamon County Circuit Court for a temporary restraining order (TRO) to prevent enforcement of the new rule, arguing that the Commission only has the power to make procedural rules, not substantive – which is the job of the state legislature. The plaintiffs and their business supporters also expressed concern that the rule applied not only to medical personnel and firefighters but also to essential workers like grocery employees – an extension of protection some other states have not been willing to make beyond medical and firefighting personnel.

The court issued the TRO, but before the case went any further, the Commission responded by repealing the rule. On the same day, the Commission issued a memorandum announcing the creation of the Covid-19 Action Committee that would “[examine] … the problems created by the Covid-19 Pandemic and possible actions that the Commission may take to solve these problems.”

Presumably, these problems include the issue of linking front-line worker contraction of the virus to the workplace for purposes of workers’ compensation eligibility. We will monitor this very important situation and report back in this space.