In the words of Ralph Waldo Emerson, every sunset brings the promise of a new dawn. For first responders and front-line workers affected by COVID-19, the sunset provision of House Bill 4276 extends the promises and benefits of the COVID presumptive laws from December 31, 2020 to June 30, 2021. The bill was passed today, replacing House Bill 2455/PA 101-633 (enacted in June). The new legislation applies to cases tried after June 5, 2020 and requires a confirmed COVID-19 diagnosis between March 9, 2020 and June 30, 2021.
The COVID legislation, which creates a rebuttable presumption in favor of compensability for essential workers, has a contentious and turbulent history. In April, the Illinois Workers’ Compensation Commission created an emergency amendment to the Commission rules, which was determined to exceed its administrative authority, and which was promptly withdrawn.
Recognizing the need to address the pandemic while also balancing the interests of employers and employees, the Illinois Legislature then amended the Illinois Workers’ Occupational Diseases Act, creating a narrower version of the repealed rule. William A. Lowry and Daniel J. Ugaste worked to protect the interests of employers during the Agreed Bill Process that led to the narrower legislation in May and worked again to maintain those interests with the legislation enacted today. Ugaste, who voted on the bill, stated that “we were pleased to be able to maintain the original intent of the initial legislation and a six-month extension while the vaccine rolls out. Like the initial legislation, the ordinary rebuttable presumption applies, with the employer only needing to introduce some evidence that the claimant’s occupation was not the cause of the injury or disease in question, as do the various specific defenses to the presumption.” For more details about the legislative intent and case law behind the presumptive COVID-19 laws, please click here.
Generally, the TTD timeframe for an employee with COVID-19 should not be long. However, for employees that have been off work for a COVID-19 diagnosis (deemed to be compensable under the presumptive law), and still off work due to the COVID-19 diagnosis, TTD should not terminate on December 31, 2020.
Tremendous focus has been placed on the rebuttable presumption itself. However, the confetti will not fall, and the claimant will not be expelled from the courtroom when the presumption is rebutted. If the employer successfully rebuts the presumption of compensability, the burden then lies with the employee to show that the COVID-19 diagnosis arose out of and in the course of the employment with the Respondent. Under the Illinois Occupational Diseases Act, a disease is deemed to arise out of the employment if there is “apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease” 820 ILCS 310/1(d). Any defense attorney must remain equally vigilant about strategy before and after the presumption is rebutted. A case should be defended with every intention to rebut the presumption, but not with the expectation that the presumption will be rebutted.
The purpose of the extension of the sunset provision is to stretch the benefit of the presumptive rules to first responders and front-line workers with the recognition that the pandemic has not yet ended. With a vaccine being currently rolled out, another extension of the sunset provision is not anticipated.
The presumptive COVID rules place a heavy and unprecedented weight on employers. Illinois was one of a handful of states to enact rebuttable presumption legislation due to COVID-19 early in the pandemic. Furthermore, the definition of “essential workers” covers a vast sector of the working force beyond the rebuttable presumption articulated in Section 6(f) of the Illinois Workers’ Compensation Act (limited to firefighters, EMTs and paramedics). The impossibility of pinpointing exposure and contraction of COVID-19 may be reflective of the impossibility to adjudicate claims fairly.
The COVID legislation refers to cases tried after June 5, 2020. However, a litigated COVID case is still just a concept, with the current cessation of trials due to the pandemic itself. For more information regarding the COVID presumptive rules, or how to navigate an allegation of work-related COVID-19 exposure, please feel free to reach out to us here.