Last month, the Illinois Workers’ Compensation Commission (IWCC) withdrew its April 16th emergency rule creating a rebuttable presumption in favor of compensability for First Responders or Front-Line Workers who contract COVID-19. The withdrawal of the rule came after the Sangamon County Circuit Court granted the Illinois Manufacturers’ Association (IMA) and Illinois Retail Merchants Association (IRMA) Motion for a Temporary Restraining Order asserting the IWCC exceeded its administrative authority in enacting the rule.
The Illinois Legislature, through an agreed bill process, has now crafted a new bill.
The amendment creates a rebuttable presumption for First Responders and Front-Line workers. However, it is more tempered and specific than the IWCC’s original evidentiary rule. Furthermore, the bill incorporates legislative intent noting that only an ordinary (some evidence) standard, as opposed to a strong (clear and convincing evidence), standard is needed to rebut the presumption. The Legislature follows the holding of Kevin Johnston v. Illinois Workers’ Compensation Commission, 2017 IL App (2d) 160010WC. The Court in Johnston held “some” evidence was enough to support a finding that something other than the employee’s occupation caused his condition.
Evidence to rebut the presumption includes, but is not limited to:
- Demonstrating the employee was working from home or on leave for more than 14 consecutive days prior to injury or incapacity.
- Demonstrating 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 an employee was exposed to COVID-19 by an alternative source.
Additionally, for diagnoses occurring on or after June 16, 2020, the new bill mandates an employee must establish they contracted COVID-19 through positive laboratory testing administered by a medical practitioner. This eliminates the possibility of “self-testing” under the previous rule. For diagnoses occurring on or before June 15, an employee must provide a confirmed medical diagnosis by a licensed medical practitioner or a positive laboratory test for COVID-19.
The bill will still apply to the Governor’s list of employees deemed a “COVID-19 first-responder or front-line worker” as defined Executive Order 2020-10 dated March 20, 2020. However, the employee must also establish they were required to encounter members of the general public or to work in employment locations of more than 15 employees. The bill specifically states an employee’s home is not a place of employment, except for homecare workers.
Finally, the bill allows employers a credit against any liability for temporary total disability due to an employee as a result of the employee contracting COVID-19 for: (1) any sick leave benefits or extended salary benefits paid to the employee by the employer under the Emergency Family Medical Leave Expansion Act and Emergency Paid Sick Leave Act of the Families First Coronavirus Response Act, or any other federal law, or (2) any other credit to which an employer is entitled under the Occupational Diseases Act.
The bill is retroactive, applying to COVID-19 cases on or after March 9, 2020 through December 31, 2020.
We will keep you advised of any further developments.