On May 21, 2020, the Illinois Legislature amended the Illinois Workers’ Occupational Diseases Act to provide a rebuttable presumption in favor of compensability for First Responders and Front-Line workers who contract COVID-19. The bill awaits the governor’s signature. As we outlined last week, this amendment’s scope is narrower than the IWCC’s short-lived rule amendment, and per one prominent association’s estimates, the differences between this bill and the withdrawn order could save employers as much as $2B.
William A. Lowry, co-managing shareholder for the firm, was the sole defense counsel who worked with the business caucus to protect employers’ interests during the Agreed Bill Process that led to the narrower legislation, with the assistance of Daniel J. Ugaste, another shareholder of the firm, and State Representative for the 65th District.
The amendment creates a rebuttable presumption in favor of compensability for First Responders and Front-Line workers who contract COVID-19. This amendment states the exposure and contraction are presumed to have arisen out of and in the course of employment, and the injury or occupational disease is presumed to be causally connected to the hazards or exposures of employment. The employer can rebut the presumption.
The legislation creates a rebuttable presumption similar to the rebuttable presumption that already exists within the Illinois Workers’ Compensation Act. In fact, the Illinois Legislature pointed to precedent established in the Illinois Appellate Court, 2nd District Opinion in Kevin Johnston v. Illinois Workers’ Compensation Commission to support the addition of this Amendment to the Illinois Workers’ Occupational Diseases Act. In Johnston, the Appellate court found in order to rebut the presumption, “some evidence sufficient to support a finding that something other than the claimant’s occupation caused his condition” is sufficient.
The legislative intent was to create a presumption that follows the holding in the Johnston case. That is, as in Johnston, to create an ordinary rebuttable presumption. The presumption creates a prima facie case that the injury arose out of and in the course of employment. To rebut the presumption, the employer must introduce some evidence that the claimant’s occupation was not the cause of the injury or disease in question. Once the employer does so, the presumption ceases to operate and the issue is determined on the basis of evidence presented at trial, as if no presumption had ever existed. The burden of proof does not shift but remains with the party who initially had the benefit of the presumption.
In addition to merely requiring some evidence, rather than clear and convincing evidence to overcome the rebuttable presumption, the amendment is narrower than the IWCC’s withdrawn rule amendment in several ways. The new amendment would exclude home employment from the rebuttable presumption. It requires employees to have actually contracted COVID-19 rather than merely alleging exposure. Finally, the provision has a specific December 31, 2020 sunset provision.
Best practices include immediately investigating COVID-19 claims to obtain any information regarding the employee’s whereabouts at or around the time of exposure, social media investigations, co-worker interviews, and subpoenaing cell phone GPS data to attempt to rebut the presumption. Evidence that the employer provided and required PPE use, regularly sanitized common areas, and mandated social distancing, should be gathered as well. While employers now face an additional hurdle in defeating claims involving COVID-19 for First Responders and Front-Line workers, the presumption does not mean that COVID-19 cases are automatically compensable. A timely, thorough investigation may rebut the presumption.