On June 5, Illinois Gov. J.B. Pritzker signed a mostly bipartisan bill that created a presumption in state law that for workers’ compensation eligibility purposes, when an essential worker contracts COVID-19, a rebuttable presumption is created that the coronavirus-related illness or injury arose out of and in the course of that employment, a requirement for workers’ compensation eligibility. The provision became effective at the time of signing.
In May, we posted a detailed blog explaining these issues and failed attempt of the Illinois Workers’ Compensation Commission (IWCC) at issuing an emergency rule on this topic. After two business associations sued and got a temporary restraining order (TRO) preventing the agency from enforcing the rule, the IWCC withdrew it.
The bill, which is now part of state statute, is very similar to the original emergency rule and “reflects a deal agreed to by organized labor and business groups,” according to the Chicago Tribune. The presumption of contracting the coronavirus at work applies to those “essential” workers defined in the governor’s March 20 stay-home order (Executive Order 2020-10).
According to The National Law Review, the Illinois legislation covers more kinds of workers than some other states that have only applied similar presumptions to law enforcement or health workers. Illinois’ presumption applies not only to first responders and health care workers, but also to workers at “essential businesses and operations” who either work with the public or with more than 15 other employees.
Covered essential business and operations include grocers, transportation providers, gas stations, financial institutions, pharmacies, manufacturers and others – so long as they meet either the public-facing requirement or have at least 15 employees.
If an employee gets COVID-19 and the rebuttable presumption that they got it at work applies to them, the employer (or its insurer) would be responsible for the workers’ compensation claim unless the employer can rebut the presumption. Under the new law, it could rebut the presumption with evidence including, but not limited to, these scenarios:
- The person was working from or on leave for at least 14 days before COVID-19 injury.
- The person had exposure to the virus from another source.
- The employer was following sanitation, social distancing and other health and safety practices for at least 14 days before the injury according to federal and state health authority guidance.
- For those 14 days, the employer used administrative or engineering controls or industry-specific personal protective equipment.
According to media reports, many see this approach as balanced since it gives employees an initial presumption of connectedness from the virus to the workplace for workers’ compensation purposes, but then allows employers to rebut the presumption with competent evidence.