On Monday, April 13, 2020, with less than 24 hours’ notice, the Illinois Workers’ Compensation Commission issued an emergency ruling (the “Rule”) expanding eligibility requirements for workers’ compensation benefits. Under the Rule, which will last a maximum of 150 days, certain categories of workers who claim to have been exposed to or who have contracted COVID-19 because of their job are automatically presumed to be telling the truth so they can receive workers’ compensation benefits. Prior to the ruling, Illinois employees injured on the job needed to prove their injury or illness was directly caused by their work.

The Rule only applies to proceedings before the Commission brought by workers specifically identified by the Rule:

  • Police, fire personnel, emergency medical technicians, or paramedics;
  • First responders, health care providers engaged in patient care, correction officers; and
  • Crucial personnel identified under the following headings in Section 1 Part 12 of Governor Pritzker’s March 20, 2020 Executive Order 2020-10:
    • 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.

While the Rule creates a rebuttable presumption that the employee is telling the truth about contracting COVID-19 at work – meaning the employer still has the ability to introduce evidence that the employee did not contract COVID-19 through his or her duties – it is difficult to fathom how exactly an employer will be able to succeed in rebutting the presumption. This is even more difficult as the Rule covers employees who are working remotely or who are otherwise working, but not physically present in the workplace.

Governor Pritzker defended the move, stating, “In the middle of an emergency, the only way that you have to operate is to protect people as best you can…to the extent that it is required that someone has to pick up the tab for that, sometimes that will fall on the people who are most able to pick up the tab.” Pritzker’s statement seems to indicate an attempt to close the gap left by the Families First Coronavirus Response Act (FFCRA), which provides paid leave to some employees who are unable to work, but does not extend the same leave to essential and critical workers forced to continue working despite the pandemic.

But many businesses are reeling from the expected financial implications of the Rule and the rather hurried process by which the Rule was enacted. Critics of the Rule also doubt its enforceability, questioning whether the Commission appropriately considered whether COVID-19 was an “emergency” before enacting the Rule with very little notice.

On April 14, 2020, the Illinois Employer Community, a group of nine Illinois business organizations – including the Illinois Manufacturers’ Association and the Illinois Retail Merchants Association – issued a statement against the Commission’s ruling. “Manufacturers, retailers, grocers, pharmacies, food banks, convenience stores and countless essential businesses across Illinois are doing all they can to protect workers while also meeting unprecedented demand for food, medical supplies, protective equipment and other important services needed during this pandemic,” the statement reads, “[y]et this commission chose to suddenly impose a drastic policy change that will significantly increase costs and require employers to pay for medical expenses and salary benefits if an employee is diagnosed with COVID-19 without proof the illness was contracted at the workplace.”

It remains to be seen whether the Illinois Employer Community will take any further action regarding the Rule apart from the above statement or if the Rule will be expanded to cover additional groups of “Essential Workers” as defined by Governor Pritzker’s Executive Order. For now, employers should be prepared for an influx of workers’ compensation claims and gather as much evidence as possible to rebut the presumption that their coronavirus-positive employees will receive workers’ compensation benefits.

The full text of the Emergency Order can be found here.

For the latest legal news and updates on COVID-19 visit Baker McKenzie’s Resource Hub – Beyond COVID-19: Resilience, Recovery & Renewal or download the COVID-19 Global Employer Guide.  As always, feel free to contact your Baker McKenzie attorney for more information.