On May 21, 2020, amendments to the Illinois Occupational Diseases Act created a rebuttable presumption in favor of compensability for COVID-19 first responders and front-line workers who contract COVID-19; the expansive definition of “front-line workers” is based on occupations identified in the Governor’s Executive Order 2020-10 and includes employees of grocery stores, banks, postal workers, public transportation, hardware stores, etc. provided that their occupation required them to encounter members of the general public or to work in locations of more than 15 employees. The amendment originally covered diagnoses made on or after March 9, 2020 through December 31, 2020, and was subsequently amended to extend to diagnoses through June 30, 2021. As of July 1, 2021, the rebuttable presumption has essentially “expired.” Our firm previously wrote about how COVID-19 claims may be assessed under the Workers’ Compensation Act and Occupational Diseases Act, and how the statutory presumption applies to certain workers, how it was expected to operate in practice, and ways to rebut the presumption.
Now that the presumption no longer covers diagnoses after June 30, 2021, what does that mean for employers?
- It is important to note that the statutory rebuttable presumption still applies to diagnoses made prior to July 1, 2021.
Diagnoses on or after March 9, 2020 and on or before June 15, 2020 need to be made by a medical provider, diagnoses after June 15, 2020 were by lab tests. Therefore, if the diagnosis was made on or before June 30, 2021, the presumption may still apply if the injured worker was in the class of protected workers.
It is also important to note that just because there is no longer a rebuttable presumption, it does not automatically mean the employer will prevail.
- Without the benefit of the presumption, employees now carry the burden of initially establishing they were exposed to COVID-19 at work, and that a subsequent infection arose out of their employment.
The standards will depend on whether it is claimed under the Occupational Diseases or Workers’ Compensation Act:
The Workers’ Compensation Act will require the Claimant to establish that the infection stems from a discrete acute event that arose out of and in the course of the injured worker’s employment. This would require that they trace transmission to an identifiable source at work, such as an infected coworker coughing on them.
When the employee cannot trace their infection to a discrete transmission, the employee will likely assert a claim under the Occupational Diseases Act (OD Act). The employee will need to show that the infection arose out of and in the course of their employment.
“A disease shall be 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. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence.” 820 ILCS 310/1(d).
In addition, the presumption of “exposure” remains for those employees who work in an occupation where the hazard of the disease exists:
“An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when, for any length of time however short, he or she is employed in an occupation or process in which the hazard of the disease exists.”
Thus, exposure could be presumed for healthcare workers who work in settings where they come in regular contact with COVID-19 patients. Once exposure is established, the burden shifts to the employer to prove there was no actual exposure either because the offending agent did not exist in the workplace, or precautionary measures were taken to screen or protect the employee from the hazard.
The OD Act also already has a presumption for certain first responders for “any condition or impairment . . . which results directly or indirectly” from any “lung or respiratory disease or condition.” This will produce a rebuttable presumption that the condition arose out of and in the course of their employment and is causally connected to the hazards or exposure of their employment.
Once the employee establishes the requisite exposure, or entitlement to a rebuttable presumption, the burden shifts to the employer to produce evidence rebutting the presumption.
- The methods for defending COVID-19 claims are essentially the same regardless of a rebuttable presumption.
The two primary areas to attack, as with any workers’ compensation claim, will be the exposure or accident, and causation.
The statutory amendments provided specific methods to rebut the presumption of exposure or accident:
- Demonstrating that the employee was working from home or on leave for more than 14 consecutive days prior to injury or incapacity;
- Demonstrating that the Respondent was “enforcing to the best of its ability industry-specific workplace sanitation, social distancing, and health and safety practices based on updated guidance issued by the Centers for Disease Control or Illinois Department of Public Health for at least 14 days prior to the employee’s injury. This includes the use of personal protective equipment (PPE) such as the use of a face mask or safety glasses;
- Demonstrating that the employee was exposed to COVID-19 by an alternative source.
These arguments should still apply to claims without an automatic statutory presumption. The first option is relatively straight forward.
For the second option, for persons who are routinely exposed to COVID-19, the focus will be on protective equipment and other precautions used. For those workers who are not routinely exposed to COVID-19, or persons outside their organization, information concerning infections within the workplace will be critical to show that there was no increased risk or “that the hazard of the disease did not exist in their employment.” For others, community positivity rates will be important to show whether there were any increased rates of infection within their workplace compared to the general public. Other information such as the employee’s physical location in the workplace, interactions with other workers, and use of PPE may be relevant as well. The information and precautions used to reduce or quell outbreaks in the workplace will also help defend against COVID-19 claims.
The third method, proving that the Claimant was exposed by an alternative source, may be the most powerful defense. The best information will be that which is specific to the employee: Do they have a large family? Do they use PPE outside of the workplace? Did they frequent social gatherings around that time? Social media investigation early on in the claim may be extremely valuable, as well as witness statements: testimony that the worker was at a concert or festival the weekend prior to the infection could raise the inference of an exposure occurring outside the workplace. If the employee lives in an area different from their place of employment, information such as public health contact tracing and infection rates where they reside could help show that the hazard of infection in the workplace was not as significant as that encountered in their daily lives.
As COVID infections trend upwards with the new Delta variant, employers will likely see a resurgence of COVID claims. Although employees may still be able to establish a compensable claim without the rebuttable presumption, the increased transmission rate may help undercut the argument that work presents an increased risk.
As is true with any workers’ compensation claim, a swift and thorough investigation early on is the best opportunity for preparing a strong defense. The attorneys at Nyhan, Bambrick, Kinzie & Lowry are available to answer questions on COVID-19 claims to help provide the best defense for employers.