In follow up to the Commission’s meeting on Monday, the Commission held another one on Wednesday, April 15
th
, to further amend Section 9070.30 of the Commission rules as it relates to COVID-19 First Responders and Front-Line Workers.
The amended rule still states that in claims where the employee is a First Responder or Front-Line Worker, if the “injury, occupational disease, or period of incapacity,” results from exposure to the COVID-19 virus during the Governor’s Disaster Proclamation, there is a rebuttable presumption that the exposure arises out of and in the course of employment
AND
that it is causally related to the COVID-19 First Responder or Front-Line Worker employment.
The Commission, however, further expands the definition of “COVID-19 First Responder or Front-Line Worker” to include Section 1 Parts 7,8,9,10,11 and 12 of the Governor’s Executive Order 2020-10 dated March 20, 2020. With these changes, just about every employee in the state will be entitled to the presumption.
The amended Commission rule goes into effect as of April 16, 2020, and Chairman Brennan has clarified that it
IS NOT
retroactive. The amended Commission Rule and the Governor’s Executive Order 2020-10 is attached for reference.
Beyond changing the burden of proof in cases related to COVID-19 exposure for an expansive set of industries and employees, the rule also leaves open the possibility that benefits could be owed to individuals without a diagnosis of COVID-19 but that are in “a period of incapacity” as a precaution from exposure to COVID-19.
In conversation with legislative leaders, the Governor has made clear that the Emergency Period will extend 150 days but thereafter will be open to reassessment. As with anything coming out of the Statehouse, the only thing certain is that nothing is. Still, for the present consider that COVID-19 exposures from April 16, 2020 through mid-September 2020 will be very easy for the worker to prove. To deny, an employer will need conclusive proof there was no chance whatsoever of COVID-19 in the work environment plus affirmative evidence that the disease was present in other aspects of the worker’s life.
There remain many questions in the applicability of this rule, and how it will affect employers. Questions ranging from the practical of what benefits are owed, to whom, in what time frame, and what defenses do we have to these claims to more substantive legal questions as to whether the Commission even has the authority to pass such a rule outside of the normal legislative process that alters long settled statutory and legal standards in the Illinois Workers’ Compensation Act.
As to immediate action to challenge the emergency rule, the Illinois Chamber of Commerce (the Chamber) and the Employment Law Council for Workers’ Compensation is working with the respondents’ bar to file a temporary restraining order in civil court. If granted by the presiding judge, we will have additional time to challenge the constitutionality of the rule before it goes into effect. Additionally, we are exploring whether we can challenge the rule through the Joint Commission on Administrative Rules (JCAR), a bipartisan state legislative committee that reviews the propriety of administrative rules including whether agencies promulgating certain rules exceed their authority in doing so. From a longer term perspective, the Chamber is encouraging stakeholders to consider participation in the legislative drafting sub-committee to ensure business and the respondents’ bar are adequately represented in the rule-making and legislative process should a modified version of the emergency rule become law at a later date.
Please expect additional analysis and recommendations from the BCM COVID-19 Task Force as additional information comes available.
