TMA issues statement on Gov Pritzker’s new Workers Comp COVID-19 rules

Technology & Manufacturing Association UPDATE ON NEW IL WORKERS COMPENSATION RULES

During an emergency meeting of the Illinois Workers’ Compensation Commission (IWCC) on Wednesday, the Commission approved changes to the emergency rule advanced Monday, April 13. The changes expand the application of the rule to additional entities not covered by Monday’s version of the rule.

The changes, in addition to those entities covered in Section 1 Part 12 of the Governor’s Executive Order 2020-10, adds parts 7, 8, 9, 10 and 11. Broadly these new parts include: Healthcare and Public Health Operations; Human Services Operation; Essential Infrastructure; Essential Government Functions; and Businesses Covered by the Executive Order: “any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function it performs, or its corporate or entity structure.”

TMA is engaged in an effort with Illinois business groups to expedite a Temporary Restraining Order to address this issue and protect our members.

The result of the revised emergency rule is that any Illinois employer, private, public for-profit or non-profit, whose worker is exposed to COVID-19 now has the burden shifted upon the employer to prove that the COVID-19 injury, disease, or incapacity did not occur at the workplace.

Other concerns are:

Arising Out of & in the Course of Employment: The original provision to create the rebuttable presumption has a couple of clarifications but continues to provide that “if the petitioner’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus during the Gubernatorial Disaster Proclamation 2020-38 and any subsequent COVID-19 disaster proclamations, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner’s COVID-19 First Responder Front-Line Worker employment”.

Causal Connection: the emergency rule goes on to provide that the petitioner’s exposure “will 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.”

Rule Attacks “Increased Risk” Doctrine: Our read is that the emergency rule will result in undermining Illinois’ long standing application of the law’s doctrine of “increased risk” which states a workers’ compensation claimant must show that they were at greater risk of injury than the public because of the requirements of their job. Replacing this doctrine would be “positional risk”, a standard where an employee is entitled to workers’ compensation benefits if his or her job was responsible for him or her being at the location of the accident.

IWCC Exceeds Its Authority with Emergency Rule: Illinois current law provides a rebuttable presumption already for first responders. Subsection (f) of Section 6 of the Workers’ Compensation Act (820 ILCS 305/6) provides a rebuttable presumption to firefighters, emergency medical technicians, emergency medical technician-intermediates, advanced emergency medical technicians, or paramedics for any bloodborne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer resulting in any disability (temporary, permanent, total, or partial). It also provides a presumption for these workers for any hernia or hearing loss. A similar provision is provided in the Occupational Diseases Act (820 ILCS 310/1). The Commission is exceeding its authority by expanding the scope of the rebuttable presumption to workers who are not identified under the statute.

While the current statute may provide workers’ compensation or occupational disease benefits based on the facts of the claim of the petitioner regardless of their profession, trade or worker classification, the statute does not provide a rebuttable presumption to workers other than those delineated in the statute.