Earlier this year, Governor Pritzker signed into law House Bill 2455, now Public Act 101-0633, which amended the Workers’ Occupation Disease Act (820 ILCS 310) among other items.
History of House Bill 2455/ Public Act 101-0633
Prior to House Bill 2455 being signed, COVID-19 related workers’ compensation coverage was hotly debated by pro-employee and pro-employer advocates across Illinois and the United States.
In the spring of 2020, the Illinois Workers Compensation Committee (ILWCC) adopted an emergency rule which included langauge very similar to the language which ended up in House Bill 2455. This emergency rule created quite a controversy and resulted in a lawsuit filed by several Illinois business groups and the issuance of a temporary injunction by the circuit court.
The ILWCC withdrew the emergency rule and the the Illinois legislature created House Bill 2455. While House Bill 2444 is essentially a codification of the initial ILWCC emergency rule, it creates clearer parameters as to how and when the new presumption applies.
New COVID-19 Related Amendment to Illinois’ Workers’ Occupation Disease Act
The new amendment to the Workers’ Occupation Disease Act made two significant modifications.
First, it created a rebuttal presumption that an employee’s COVID-19 diagnosis or related injury arises out of, and in the course of, that employee’s employment in certain defined circumstances. It requires the affected employers to provide worker’s compensation coverage to employees who are exposed to and contract COVID-19.
Second, unlike similar laws imposed by Wisconsin, Washington, and Utah, which limit coverage to healthcare workers and law enforcement, Illinois expanded the coverage to be provided by increasing the types of individuals who are protected. Instead of using the phrase “first-responders” or “law enforcement”, Illinois used the phrase “COVID-19 first responder or front-line worker.” While this minor change in wording may seem inconsequential, it actually has huge consequences.
This additional language expands the number of different types of employees covered under the amendment; instead of solely protecting the expected and important (but restrictive) groups classified as “law enforcement”, “first responders”, or “health care workers”, the amendment provides coverage to employees in various areas of the economy.
Who Is a COVID-19 First Responder or Front-Line Worker under Illinois Law?
The difference is in the extent of coverage provided by Illinois is clearly visible once you understand how the Illinois legislature defined the phrase “COVID-19 first responder or front-line worker”. Taking a very wide approach, Illinois stated that such term means:
“all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all individuals employed and considered as first responders; all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers; corrections officers; and any individuals employed by essential businesses and operations as defined in Executive Order 2020-10 dated March 20, 2020”
While the definition above may not seem that different, the portion which has the biggest impact is the part that states “any individuals employed by essential businesses and operations as defined in the Executive Order 2020-10 dated March 20, 2020” (“Executive Order”).
Pursuant to the Executive Order, the following businesses are considered “essential businesses” (in addition to a number of others): stores that sell groceries and medicine, gas stations and businesses needed for transportation, financial institutions, hardware and supply stores, laundry services, home-based care and services, professional services, hotels, food/beverage production and agriculture. In other words, all those individuals who are employed by grocery stores, pharmacies, convenience stores, food banks, media outlets, gas stations, banks, hardware stores, educational institutions, transportation providers, manufacturing facilities, or restaurants qualify for protection under the new COVID-19 related amendment to the Workers’ Occupation Disease Act.
Requirements to Qualify For COVID-19 Protection Under the Illinois’ Workers’ Occupation Disease Act
While the list of businesses considered to be essential seems exhaustive, Illinois did place a few restrictions on when an individual is able to request protection under the new amendment. Individuals are only covered under the new COVID-19 related amendment to the Workers’ Occupation Disease Act if they are: (i) employed by an essential business; and (ii) are required (as part of their job) to encounter members of the general public or to work in employment locations of more than fifteen (15) employees.
In addition, the Illinois legislature determined, solely for the purposes of the new amendment, that an employee’s home or place of residence is not considered a place of employment, except for home care workers. This means that employees who work solely from home cannot file worker’s compensation claims related to contracting COVID-19.
COVID-19 Related Protection for Employers under the Illinois’ Workers’ Occupation Disease Act
While the amendment may initially seem to have been very heavily drafted in favor of employees, employers were not forgotten. The legislature carved out a specific exception within the amendment allowing an employer to present evidence to rebut the assumption that an employee contracted COVID-19 while performing services for the employer. This converts the presumption from a conclusive presumption into a rebuttable presumption.
An employer may rebut the presumption by presenting evidence that the employee did not contract COVID-19 as a result of their employment, including evidence that: (i) the employee was working from home, on leave or some combination thereof, for a period of 14 or more consecutive days immediately prior to the employee contracting COVID-19; (ii) the employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability industry-specific workplace health and safety practices based on updated guidance issued by the Centers for Disease Control and Prevention or Illinois Department of Public Health (or was using a combination of administrative controls, engineering controls, or personal protective equipment to reduce the transmission of COVID-19 to all employees) for at least fourteen (14) consecutive days prior to the employee contracting COVID-19; or (iii) the employee was exposed to COVID-19 by an alternate source.
In addition, the Illinois legislature added language as part of the amendment to the Workers’ Occupation Disease Act indicating that under no circumstances should any COVID-19 case increase or affect any employer’s workers’ compensation insurance experience rating or modification. See 820 ILCS 310/1(g)(5).
Time Restraints on COVID-19 Related Protection under the Illinois’ Workers’ Occupation Disease Act
It is also important to note that the rebuttable presumption created by the new COVID-19 related amendment to the Workers’ Occupation Disease Act only applies for a limited period of time. Only those employees who were diagnosis with COVID-19 on or after March 9, 2020 and before December 31, 2020 are entitled to protection under the new amendment.
In addition, certain document may be required in order for the presumption created under the amendment to apply at trial. For COVID-19 diagnoses occurring on or before June 15, 2020, an employee must provide a confirmed medical diagnosis by a licensed medical practitioner or a positive laboratory test for COVID-19 or for COVID-19 antibodies. For COVID-19 diagnoses occurring after June 15, 2020, an employee must provide a positive laboratory test for COVID-19 or for COVID-19 antibodies.
Should you have any questions about the recent amendment to the Workers’ Occupation Disease Act or any other laws that may affect your business, or would like to schedule a free initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or contact us online.
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