By Mark L. Johnson, Mark A. Lies, II, Adam R. Young, and Craig B. Simonsen
Seyfarth Synopsis: After a Sangamon County Circuit Court temporarily blocked the Illinois Workers’ Compensation Commission’s (IWCC) emergency rule that created a rebuttable presumption that injured employees contracted COVID-19 at work, the IWCC repealed the emergency rules.
Infectious diseases transmitted in the community typically are not compensable through the Illinois workers’ compensation system, unless the claimant can prove that the disease arose out of and in the course of employment. On April 16, 2020, the Illinois Worker’s Compensation Commission issued an emergency rule providing that any COVID-19 infection incurred by a “First Responder or Front-Line Worker” would be “rebuttably presumed” to be “causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment.” Affected employees included “police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, health care providers engaged in patient care, corrections officers, and the crucial personnel” defined in Governor Pritzker’s Executive Order of March 20, 2020. “Crucial personnel” include “Healthcare and Public Health Operations,” “Human Services Operations,” “Essential Infrastructure,” “Essential Government” and “Essential Businesses” — effectively included all employees currently unaffected by the stay-home order.
The Chicagoland Associated General Contractors (AGC), the Illinois Manufacturers’ Association (IMA), and the Illinois Retail Merchants’ Association (IRMA) filed separate lawsuits to block the emergency rule on both substantive and procedural grounds. In their Verified Complaint for Injunctive and Other Relief, the IMA and IRMA objected to the Workers’ Compensation Commission “usurping authority vested solely with the Illinois Legislature and unlawfully implementing its recent emergency amendments” to the Illinois Workers’ Compensation Act (IWCA). The Associations argued that the “sweeping substantive legal reform granting new rights to employees and infringing on the protectable interests of employers (including Plaintiffs’ employer members) by declaring COVID-19 to be a prima facie Workplace Occupational Disease under the IWCA and the Workers’ Occupational Disease Act.” Because it would be almost impossible to identify the precise source of any individual COVID-19 infection, the Complaint further contended that the Defendants’ brazen usurpation of authority created a “virtually irrefutable rebuttable presumption under the IWCA that COVID-19 was in fact contracted in the workplace.”
The Sangamon County Circuit Court issued a temporary restraining order (TRO) on Friday, April 24, 2020. In the meantime, the Worker’s Compensation Commission held an emergency board meeting today, on April 27, 2020, and withdrew the emergency rules. The Commission cited only the “costly litigation” as the reason for the withdrawal. With this, the Commission would return the rules to the “status quo” before the emergency rules went into effect.
Employees with COVID-19 illnesses also may seek to file civil tort lawsuits and avoid the exclusive remedy provisions of the worker’s compensation laws, alleging intentional conduct by the employer to injure the employee. Employers can rebut those tort claims with a comprehensive COVID-19 plan that follows CDC and Illinois Department of Public Health guidance. Protocols and procedures should address employee training, social distancing, employee screening, engineering controls, administrative controls, personal protective equipment, and others as appropriate. In addition, the employer could argue that similarly situated employees have not become infected at the workplace and that the employees’ infection arose from a social contact outside the workplace. Finally, there is no medical evidence to prove that the infection occurred at the workplace.
For more information regarding COVID-19 or any workplace safety or employment topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental, Employment, or Litigation Teams.