Pending Legislation on “Rebuttable Presumption” for COVID-19 Cases

As you are aware, in April, the Illinois Workers’ Compensation Commission proposed a Rule change to adopt a “rebuttable presumption” for COVID-19 exposure in the State of Illinois.  The Rule change was successfully challenged in Court, and subsequently withdrawn by the Commission.  At that time, it was anticipated that legislative changes would instead be pursued to create a presumption of compensability for exposure to COVID-19.

 

The Illinois General Assembly was called into Emergency Session beginning on Wednesday, May 19.  As expected, a “rebuttable presumption” bill, which proposes to codify changes to the Workers’ Compensation Act and Occupational Diseases Act, has now been filed as an Amendment to Senate Bill 471.  The proposed law would create a presumption that “essential workers” (as defined by the Governor’s prior Executive Order) who contract the virus are deemed to have been exposed to it in relationship to their employment.

 

The proposed legislation is obviously of concern to employers across the State, as it changes the burden of proof for defending claims of exposure to the COVID-19 virus in certain circumstances.  As a result, it could expand liability for the costs of illnesses (including medical expenses, temporary total disability, and permanency) in employees who may or may not have actually contracted the virus in the workplace.  To address these concerns, the business community fought to include modifications to the proposed legislation, in an effort to narrow the scope of affected employers, as well as to bolster the ability to rebut the presumption.

 

The bill that was filed specifies the following:

• The presumption applies to any employees who are First Responders, health care workers, and corrections officers.
• The presumption also applies to all “essential employees” as defined in the Governor’s Executive Order of March 20, 2020, as long as the employees are required by their employment to encounter members of the general public or to work in locations with more than 15 employees.
• The presumption does not apply to an employee working at home, except for home care workers.
• The presumption effects only diagnosed cases of contracted COVID-19, and not mere exposures.
• The presumption is defined as an “ordinary” presumption rather than a “strong” presumption, which reduces the strength of the evidence required to rebut the presumption.
• The presumption can be rebutted by evidence that the employer was compliant with the industry-specific guidelines issued by the CDC or Illinois Department of Public Health for at least 14 days prior to the COVID diagnosis., including, as applicable, use of appropriate personal protective equipment.
• The presumption can also be rebutted by evidence that the employee was not at the workplace within 14 days prior to the onset of the disease, or was exposed to the virus by an alternate, non-work related source.
• An employer is entitled to a credit against temporary total disability liability for any paid sick leave benefits or other time loss benefits paid to the employee.
• COVID-19 cases shall not be used to effect the employer’s insurance experience rating or modification.

 

In terms of guidance to our clients regarding the implications of this legislation, we would continue to emphasize the importance of being pro-active with documentation of potential exposures of which you become aware, as well as thorough investigation of clams that develop.  We would also recommend that, in light of the legislation’s reference to CDC and IDPH guidelines, which have changed and developed throughout the course of the pandemic, you document what protective measures you have implemented throughout the course of the past two months, and that you continue to do so as further modifications to the guidelines occur.

 

Our attorneys stand ready to assist you as you encounter these issues.  We will continue to keep you advised on the status of this pending legislation.  Finally, we recognize the significance of this proposed expansion of compensability, and we will continue to offer our guidance on the implications of any new law that is ultimately adopted on this issue.