On April 13, 2020, the Illinois Workers' Compensation Commission passed an Emergency Amendment to the Commission's Rules of Evidence, which was published April 16, 2020. The new rule provides that, whenever the employee claiming workers' compensation coverage is a COVID-19 "First Responder or Front-Line Worker," and the employee's injury, occupational disease, or incapacity resulted from exposure to the COVID-19 virus during the COVID-19 state of emergency, there will be a rebuttable presumption that the condition was causally connected to the hazards or exposures of the employee's employment. This means that, should an employee covered by the Emergency Amendment become ill with COVID-19 and file a workers' compensation claim, there is a significant likelihood that the condition will be covered by workers' compensation.
While this is not surprising for first responders and front-line workers such as EMTs, health care workers, law enforcement, firefighters, corrections officers, and similar workers, the emergency rule goes a step further and appears to include all employees employed by businesses that were deemed "essential businesses" by Governor Pritzker's Executive Order issued on March 20, 2020 ( EO 2020-10). This includes, but is not limited to, workers engaged in supporting essential infrastructure such as construction work, power generation, operation and maintenance of utilities, grocery store workers, food and beverage manufacturers, restaurant workers, delivery services, postal workers, gas station attendants, and a large number and variety of other businesses. In fact, the emergency rule includes every category defined in the Governor's Executive Order as "essential." A group of nine Illinois employer organizations opposed the Commission's Emergency Rule, including the Illinois Manufacturers' Association, the Illinois Retail Merchants Association, Illinois Petroleum Marketers, and the Associated Beer Distributors of Illinois.
This Emergency Rule means that any employee working in any of the essential businesses who becomes ill with COVID-19 during the "state of emergency" (which may be expanded by the Governor) will be much more likely to successfully recover workers' compensation benefits, ultimately resulting in significantly increased future costs to the employer. On the other hand, if employees' injury claims are covered under workers' compensation, then in most instances, an employee will not be able to maintain a separate lawsuit directly against the employer for the exposure due to the exclusive remedies provision in the Illinois Workers' Compensation Act.
How an employer or workers' compensation carrier will prove that the employee contracted COVID-19 somewhere else is unclear. It would seem that this new rule makes it even more important for employers to keep detailed notes and communications with employees throughout this COVID-19 crisis each time an employee reports that someone in his household has symptoms or a COVID-19 diagnosis, or any other possible exposure outside of work, in order to possibly use as evidence to rebut the automatic presumption that the virus was contracted at work.
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