Key Takeaways

• The Illinois legislature has enacted amendments to the Illinois Workers’ Compensation and Occupational Diseases Acts to address the evidentiary requirements and standard of proof for COVID-19 claims

• The bill, effective June 5, 2020, creates a rebuttable presumption that a COVID-19 diagnosis or related injury arises out of and in the course of employment in defined circumstances

• Under the amendment, the presumption applies to any first responder or front-line worker receiving a COVID-19 diagnosis between March 9 and December 31, 2020

The Illinois legislature recently enacted bipartisan amendments to the Illinois Workers’ Compensation and Occupational Diseases Acts to address the evidentiary requirements and standard of proof for COVID-19 claims. The legislation comes in response to a rule enacted by the Workers’ Compensation Commission, which was ultimately withdrawn following a lawsuit by Illinois business groups and a temporary injunction from a circuit court judge.

The final bill, sent to Gov. Pritzker on May 29, 2020 and effective June 5, 2020, creates a rebuttable presumption that a COVID-19 diagnosis or related injury arises out of and in the course of employment in defined circumstances.

Employers should also take note that, under the amendment, COVID-19 claims will not impact their insurance experience rating or modification.

While the amendment is essentially a codification of the initial Commission rule, it creates clearer parameters as to when and how the presumption applies.

WHO QUALIFIES FOR THE PRESUMPTION?

Under the amendment, the presumption applies to any first responder or front-line worker receiving a COVID-19 diagnosis between March 9, 2020 and December 31, 2020. “Front-line” workers are enumerated in Gov. Pritzker’s March 20, 2020 executive order and include employees of:

• Health care providers
• Grocery stores
• Food and beverage manufacturers/distributors
• Financial institutions
• Pharmacies
• Gas stations and transportation businesses
• Educational institutions
• Charitable and social services organizations
• Hardware and supply stores
• Media enterprises
• Critical trades, such as contractors, plumbers, and electricians, among others
• Laundry services
• Suppliers of goods for essential business
• Suppliers of goods necessary to work from home
• Home-based care and services
• Residential facilities and shelters
• Professional services, such as legal, accounting, insurance, and real estate services
• Certain daycare centers
• Manufacturers and distributors of critical products for industry
• Critical labor union functions
• Hotels and motels
• Funeral services
• Restaurants providing carry-out and curbside pickup

However, unlike the Commission’s rule, the presumption only applies to workers who, 1.) Were required to interact with the public, or 2.) Work with 15 or more employees at their place of business. With the exception of home care workers, an employee’s residence is not considered their place of business.

WHEN DOES THE PRESUMPTION APPLY?

The presumption applies to any COVID-19 diagnoses made between March 9, 2020 and December 31, 2020. For injuries arising before June 15, 2020, claimants must establish they contracted COVID-19 through a confirmed diagnosis from a licensed medical practitioner with either a positive COVID-19 test or a test showing the presence of COVID-19 antibodies.

Any claimants with dates of injury or illness after June 15, 2020 must have a positive COVID-19 or antibody test in order to receive the presumption.

HOW DO EMPLOYERS REBUT THE PRESUMPTION?

Under the amendment, employers may rebut the presumption in three ways:

1. By demonstrating compliance with the recommended Centers for Disease Control and Prevention (CDC) or Illinois Department of Public Health (IDPH) guidelines in the 14 days prior to the diagnosis
2. Establishing the claimant contracted the virus somewhere else
3. Showing the claimant worked from home or was off work in the 14 days prior to the diagnosis

IMPACT ON HANDLING AND LITIGATING COVID-19 CLAIMS

The amendment acknowledges that due to the nature of the virus, there may not be a clear cut exposure date and defines the accident or onset date as the date the employee was unable to work due to contraction of COVID-19 or was unable to work due to symptoms that were later diagnosed as COVID-19, whichever comes first.

The amendment also slightly modifies the eligibility requirements for temporary total disability. In order for an employee to qualify for temporary total disability benefits under the new presumption, the employee must be “certified or recertified” for temporary total disability benefits. Though the amendment does not define “certified or recertified,” it is likely these terms refer to a work status slip from a doctor.

Additionally, the amendment creates an employer credit against any benefits paid under the following: Emergency Family Medical Leave Expansion Act (EFMLEA), Emergency Paid Sick Leave Act (EPSLA) of the Families First Coronavirus Response Act (FFCRA), or any other federal law, or any other credit to which an employer is entitled under the Workers’ Compensation Act.

It is also of great importance for employers to bear in mind failure to establish the presumption does not automatically preclude compensability. It is possible for claims to succeed without the presumption. We continue to encourage employers and insurance carriers to swiftly and thoroughly investigate any COVID-19 claims, as the claims remain defendable, particularly where employers follow established safety precautions and are actively documenting their efforts to minimize exposure and spread of the virus.

Goldberg Segalla has industry-experienced attorneys to help coordinate applicable rules and regulations, guide investigation, and explore your available defenses. For more information or immediate guidance, contact:

• Emily E. Borg
• Jennifer B. Santoro
• Natasa Timotijevic
• Or another member of our Illinois Workers’ Compensation practice