Illinois Approves Changes to Workers’ Compensation Presumption for Emergency and Front-Line Workers Infected by COVID-19

Yesterday, Governor Pritzker signed into law HB 2455, a labor omnibus bill. Among its many provisions, this law contains language creating a rebuttable presumption that a worker who contracts COVID-19 did so during work. This provision echoes the emergency evidentiary rule filed in April by the Illinois Workers’ Compensation Commission, which was soon unanimously repealed after being blocked by a Sangamon County judge. 

The new law includes those injuries, occupational diseases, or periods of incapacity resulting from “exposure to and contraction of COVID-19.” Such exposure or contraction is rebuttably presumed to have arisen out of and in the course of the employee’s first responder or front-line worker employment and the injury or occupational disease is rebuttably presumed to be causally connected to the hazards or exposures of the employee's first responder or front-line employment. This means that the burden falls upon the employer to show that the employee did not contract COVID-19 at work. This rebuttable presumption applies to any COVID-19 diagnosis made between March 9, 2020 and December 31, 2020.

The term "first responder or front-line worker" means: police, fire personnel, EMTs or paramedics, individuals considered first responders, workers for health care providers, corrections officers, and individuals employed by essential businesses and operations if they are required to encounter members of the general public or to work in locations of more than 15 employees. For this last category, essential businesses and operations are defined in Executive Order 2020-10 (March 20, 2020) to include:

• Stores that sell groceries and medicine;
• Food, beverage, and cannabis production and agriculture;
• Organizations that provide charitable and social services;
• Gas stations and businesses needed for transportation;
• Financial institutions;
• Hardware and supplies stores;
• Critical trades;
• Mail, post, shipping, logistics, delivery, and pick-up services;
• Educational institutions;
• Laundry services;
• Restaurants for consumption off-premises;
• Supplies to work from home;
• Supplies for essential businesses and operations;
• Transportation;
• Home-based care and services;
• Residential facilities and shelters;
• Professional services;
• Day care centers for employees exempted by [Executive Order 2020-10];
• Manufacture, distribution, and supply chain for critical products and industries;
• Critical labor union functions;
• Hotels and motels; and
• Funeral services.

A rebuttable presumption is not an automatic conclusion, but it does place additional burdens on employers to establish a non-workplace causation in COVID-19 workers’ compensation claims. In order to rebut a worker’s claim, employers need to demonstrate that their workplace was adhering to current public health guidelines and industry-specific sanitation practices for two weeks prior to the employee’s illness, or that the employee was working from home for a period of at least two weeks prior to the injury claim. An employer may also attempt to prove that the employee was exposed to the virus outside of the workplace – however, this can be a difficult determination.

The attorneys in the Labor & Employment Group of Burke, Warren, MacKay & Serritella, P.C. are available to assist in addressing these claims.