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Emergency rule creates rebuttable presumption that COVID-19 compensable under workers’ compensation for first responders and front-line workers in Illinois

By: Troy Howell

On April 16, 2020, the Illinois Workers’ Compensation Commission enacted an emergency rule that creates a rebuttable presumption that Covid-19 is compensable under the Illinois Workers’ Compensation Act for first responders and front-line workers.  The emergency rule provides:

In any proceeding before the Commission in which the petitioner is a COVID-19 First Responder or Front-Line Worker as defined in Section (a)(2), if the petitioner’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus during the Gubernatorial Disaster Proclamation 2020-38 and any subsequent COVID-19 disaster proclamations, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner’s COVID-19 First Responder or Front-Line Worker employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment.

See 50 Illinois Administrative Code § 9030.70(a)(1)(emphasis added).  A link to the Notice from the Illinois Workers’ Compensation Commission regarding the emergency rule, with the attached text of the emergency rule-Section 9030.70-is contained below.  The emergency rule is currently effective “for a maximum of 150 days.”

At first glance, the rule’s impact would seem to be limited as its application is restricted to a “COVID-19 First Responder or Front-Line Worker”.  However, the rule further defines “COVID-19 First Responder or Front-Line Worker” to include “any individuals employed as police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, health care providers engaged in patient care, corrections officers, and the crucial personnel identified under Section 1 Parts 7, 8, 9, 10, 11, and 12 of Executive Order 2020-10 dated March 20, 2020.”  See 50 Illinois Administrative Code § 9030.70(a)(2)(emphasis added).  The personnel identified under Section 1, Parts 7 through 12 of Executive Order 2020-10 encompasses a large majority of the general working population and covers employees in almost every industry.  A link to Executive Order 2020-10 issued by Governor Pritzker on March 20, 2020 is contained below.

Illinois workers’ compensation law already had a relaxed causation standard that made it difficult for an employer to defend and prevail on a workers’ compensation claim.  This emergency rule, which purportedly can apply to most workers, together with its rebuttal presumption of compensability will make it burdensome for an employer to defend and prevail on a COVID-19 workers’ compensation claim.  If the rule is construed broadly, an employer will have to rebut the presumption with evidence of how, where and when the employee was exposed to the COVID-19 virus, including that the employee was actually exposed to the virus outside of work.

Questions have arisen regarding the constitutionality of the Commission enacting the emergency rule which seems to create substantive law without legislative action or authority.  Questions have also arisen regarding the legality of the process and manner in which the Commission enacted the emergency rule.  Legal challenges to the emergency rule are surely to follow.  We will monitor the legal challenges and keep you updated.

https://www2.illinois.gov/sites/iwcc/news/Documents/15APR20-Notice_of_Emergency_Amendments_CORRECTED-clean-50IAC9030_70.pdf

https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-10.aspx

Troy practices in Lane & Waterman’s Labor & Employment practice group focusing primarily on the defense of workers’ compensation claims in both Illinois and Iowa.