ILLINOIS CREATES COVID-19 PROTECTIONS FOR EMPLOYEES 

NOTE: The presumption framework established by this amendment to the Occupational Diseases Act expired on June 30, 2021.  Any claim to an exposure and infection by COVID-19 occurring after June 30, 2021 is not subject to the presumption framework detailed below, and instead would be analyzed similar to any other occupational disease claim.

BACKGROUND

             On May 22, 2020, Illinois General Assembly passed an amendment to the Illinois Occupational Diseases Act that provides added protections to certain categories of employees that become ill due to the COVID-19 virus.  This amendment essentially accomplishes what the Illinois Workers’ Compensation Commission tried to do with their Rule amendments, but were challenged and subsequently withdrawn.  The Governor is expected to sign this legislation into law in the near future, and a full copy of the amendment can be found following this summary. 

REBUTTABLE PRESUMPTION

             Similar to the Commission Rule change, the amendment creates a rebuttable presumption of occupational exposure to COVID-19 for first responders and front line workers who contract the disease during specified dates.  First responders and front line workers are defined in the Act, but generally includes police, fire personnel, paramedics, healthcare workers who interact with other people and patients.  The Amendment also applies to employees of essential businesses who either interact with the general public or work with fifteen or more people in their work environment.  Please refer to the Amendment and Governor’s Executive Order 2020-10 as provided herein for the full details on which employees are covered.             In order to be entitled to the rebuttable presumption, an employee who is diagnosed with COVID-19 on or before June 15, 2020 must either produce evidence of a confirmed medical diagnosis or a positive laboratory test result.  For any employee diagnosed with COVID-19 after June 15, 2020, they only need to show a positive laboratory test result to obtain the presumption.  The rebuttable presumption applies to all cases where the diagnosis of COVID-19 was made on or after March 9, 2020 but before June 30, 2021.  In other words, this amendment applies to COVID-19 claims occurring before the amendment’s enactment date. 

OVERCOMING THE REBUTTABLE PRESUMPTION

             The amendment also discusses ways in which an employer can rebut the presumption through producing competent evidence at trial.  For example, if the employer can show that the employee was not working or was working from home for at least fourteen days before developing COVID-19, then the presumption would not apply.  Furthermore, if the employer can show it followed the most up to date recommendations from the Center for Disease Control (CDC) or the Illinois Department of Public Health for cleaning / sanitation practices, health and safety practices, and social distancing, and followed those recommendations to the “fullest extent possible” or enforced those recommendations “to the best of its ability”, then such evidence also serves to rebut the presumption.             Once the employer provides evidence as detailed above, the presumption of an occupational exposure should be rebutted.  The legislative intent of the rebuttable presumption relies upon the Appellate Court case Johnston v IWCC, which describes the rebuttable presumption as a bubble: Once evidence is introduced that is sufficient to rebut the presumption, the presumption “bursts” and ceases to exist.  The case then proceeds as if no presumption existed, and the petitioner bears the burden of proving all the element of the claim, such as an occupational exposure and the causal connection between the exposure to the condition. 

OTHER NOTABLE CHANGES

             The amendment contains other provisions that are noteworthy for employers.  For example, the amendment provides that COVID-19 related claims are not to increase or affect an employer’s experience rating or modification.  Therefore, any claims for COVID-19 positive employees should be clearly identified when reporting to an insurance carrier.             When an employee misses work due to contracting COVID-19, they may be entitled to temporary total disability (TTD) benefits for the period of time they are off work.  The amendment provides that if an employee receives sick leave benefits or extended salary benefits while off work, these benefits will serve to offset the employer’s TTD exposure.  In addition, an employer may be entitled to a similar credit for short term disability or long term disability benefits per Section 8(j) of the Illinois Workers’ Compensation Act. 

Best Practices

             With this amendment expected to be signed into law, we continue to recommend employers follow certain best practices for COVID-19 related claims.  

Investigation of the Claimant

             Investigation of any claim of exposure to COVID-19 is paramount, with the goal being to freeze the facts of the case.  The investigative steps that should be taken in each case include, but are not limited to the following:

• Statement of the claimant
• Statement of witnesses
• Medical history of the claimant
• Activity/social media check of the claimant – purpose is to establish alternative explanation for potential exposure.
• Medical analysis – An employer would be well suited to obtain the medical records of the claimant and all other relevant information as soon as possible and forward same to a qualified infectious disease specialist or toxicologist for review and comment as to whether the exposure was sufficient to result in the contraction of the Coronavirus.

Investigation of the Work Environment

• Secure all documentation and evidence of all efforts made toward sanitation and social distancing recommended by the CDC or the Illinois Department of Public Health. 
• Secure evidence of the Claimant’s work environment, and work area.
• Determine if the Claimant was exposed to any other employees at work who has tested positive for COVID-19.
• If possible, obtain information on customer(s) to whom the claimant may have been exposed to determine whether there was actual exposure to an individual infected with COVID-19.

 If you have any additional questions about this new amendment and how it may apply to your claims or business, do not hesitate to reach out to our attorneys to discuss your situation in greater detail.

The full text of the new amendment and Governor J.B. Pritzker’s Executive Order 2020-10 also known as Illinois’ “Shelter-In-Place” Order are available to download below, along with an FAQ written by Frank Barber.