COVID-19 THE ILLINOIS WORKERS’ COMPENSATION ACT
THE ILLINOIS OCCUPATIONAL DISEASE ACT
UPDATE: APRIL 27, 2020
NEW RULE WITHDRAWN
The New Rule discussed below, created by the Commission to make proof of exposure and causal connection to the employment of those most at risk, has been withdrawn.
The Illinois Workers’ Compensation Commission filed notice that they will meet on Monday and formally withdraw the emergency rule that created a presumption that the workplace was the cause of a COVID-19 infection. This action to withdraw the rule was taken after the Illinois Manufacturers’ Association and Illinois Retail Merchants Association filed a lawsuit on Tuesday on behalf of two-dozen organizations and won a Temporary Restraining Order on Thursday afternoon blocking the rule from taking effect. A Sangamon County judge issued the TRO on the grounds that the Commission exceeded its rulemaking authority.
Stay tuned: Members of the biz community were advised that the Commission will create a task force to work on a new rule and there will likely be legislation filed in the General Assembly.
UPDATE: APRIL 16, 2020
NEW RULE
The Commission has created a new evidentiary rule regarding the burden of proving that the first responder or front-line worker’s exposure to the COVID-19 virus is connected to their employment. This rule is much more limited that the rule previously proposed.
“The rule is written to be narrowly tailored to only apply to those people who are first responders or essential front-line workers, to only apply to their employment as first responders or essential front-line workers, and to only apply to exposures that occur during a COVID-19-related state of emergency declared by the Governor. Further, the emergency rule does not guarantee or assure an award of benefits to any individual who suspects he or she has contracted COVID-19 or self-isolates and self-quarantines due to an alleged or suspected exposure to COVID-19, but, instead, creates a reasonable rebuttable presumption that a first responder or front-line worker’s exposure to the virus is connected to their employment.”
Text of the New Emergency Rule 50 Ill. Adm. Code 9030.70(a)1 & 2:
1) 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.
2) The term “COVID-19 First Responder or Front-Line Worker” means 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.
Executive Order 2020-10 dated March 20, 2020, Sec.1, Parts 7 through 12 identify other crucial personnel as:
- Healthcare and Public Health Operations. For purposes of this Executive Order, individuals may leave their residence to work for or obtain services through Healthcare and Public Health Operations.
Healthcare and Public Health Operations includes, but is not limited to: hospitals; clinics; dental offices; pharmacies; public health entities, including those that compile, model, analyze and communicate public health information; pharmaceutical, pharmacy, medical device and equipment, and biotechnology companies (including operations, research and development, manufacture, and supply chain); organizations collecting blood, platelets, plasma, and other necessary materials; licensed medical cannabis dispensaries and licensed cannabis cultivation centers; reproductive health care providers; eye care centers, including those that sell glasses and contact lenses; home healthcare services providers; mental health and substance use providers; other healthcare facilities and suppliers and providers of any related and/or ancillary healthcare services; and entities that transport and dispose of medical materials and remains.
Specifically included in Healthcare and Public Health Operations are manufacturers, technicians, logistics, and warehouse operators and distributors of medical equipment, personal protective equipment (PPE), medical gases, pharmaceuticals, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products.
Healthcare and Public Health Operations also includes veterinary care and all healthcare services provided to animals.
Healthcare and Public Health Operations shall be construed broadly to avoid any impacts to the delivery of healthcare, broadly defined. Healthcare and Public Health Operations does not include fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, and similar facilities.
- Human Services Operations. For purposes of this Executive Order, individuals may leave their residence to work for or obtain services at any Human Services Operations, including any provider funded by the Illinois Department of Human Services, Illinois Department of Children and Family Services, or Medicaid that is providing services to the public and including state-operated, institutional, or community-based settings providing human services to the public.
Human Services Operations includes, but is not limited to: long-term care facilities; all entities licensed pursuant to the Child Care Act, 225 ILCS 10, except for day care centers, day care homes, group day care homes, and day care centers licensed as specified in Section 12(s) of this Executive Order; residential settings and shelters for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness; transitional facilities; home-based settings to provide services to individuals with physical, intellectual, and/or developmental disabilities, seniors, adults, and children; field offices that provide and help to determine eligibility for basic needs including food, cash assistance, medical coverage, child care, vocational services, rehabilitation services; developmental centers; adoption agencies; businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged individuals, individuals with physical, intellectual, and/or developmental disabilities, or otherwise needy individuals.
Human Services Operations shall be construed broadly to avoid any impacts to the delivery of human services, broadly defined.
- Essential Infrastructure. For purposes of this Executive Order, individuals may leave their residence to provide any services or perform any work necessary to offer, provision, operate, maintain and repair Essential Infrastructure.
Essential Infrastructure includes, but is not limited to: food production, distribution, and sale; construction (including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, and housing construction); building management and maintenance; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical (including power generation, distribution, and production of raw materials); distribution centers; oil and biofuel refining; roads, highways, railroads, and public transportation; ports; cybersecurity operations; flood control; solid waste and recycling collection and removal; and internet, video, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).
Essential Infrastructure shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined.
- Essential Governmental Functions. For purposes of this Executive Order, all first responders, emergency management personnel, emergency dispatchers, court personnel, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support Essential Businesses and Operations are categorically exempt from this Executive Order.
Essential Government Functions means all services provided by the State or any municipal, township, county, subdivision or agency of government and needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety and welfare of the public, and including contractors performing Essential Government Functions. Each government body shall determine its Essential Governmental Functions and identify employees and/or contractors necessary to the performance of those functions.
This Executive Order does not apply to the United States government. Nothing in this Executive Order shall prohibit any individual from performing or accessing Essential Governmental Functions.
- Businesses covered by this Executive Order. For the purposes of this Executive Order, covered businesses include any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function it performs, or its corporate or entity structure.
- Essential Businesses and Operations. For the purposes of this Executive Order, Essential Businesses and Operations means Healthcare and Public Health Operations, Human Services Operations, Essential Governmental Functions, and Essential Infrastructure, and the following:hile at work could it be considered a work injury?
a. Stores that sell groceries and medicine. Grocery stores, pharmacies, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, and other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, alcoholic and non-alcoholic beverages, and any other household consumer products (such as cleaning and personal care products). This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, and also that sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and Essential Businesses and Operations;
b. Food, beverage, and cannabis production and agriculture. Food and beverage manufacturing, production, processing, and cultivation, including farming, livestock, fishing, baking, and other production agriculture, including cultivation, marketing, production, and distribution of animals and goods for consumption; licensed medical and adult use cannabis dispensaries and licensed cannabis cultivation centers; and businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, shelters, kennels, and adoption facilities;
c. Organizations that provide charitable and social services. Businesses and religious and secular nonprofit organizations, including food banks, when providing food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities;
d. Media. Newspapers, television, radio, and other media services;
e. Gas stations and businesses needed for transportation. Gas stations and auto-supply, auto-repair, and related facilities and bicycle shops and related facilities;
f. Financial institutions. Banks, currency exchanges, consumer lenders, including but not limited, to payday lenders, pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products;
g. Hardware and supply stores. Hardware stores and businesses that sell electrical, plumbing, and heating material;
h. Critical trades. Building and Construction Tradesmen and Tradeswomen, and other trades including but not limited to plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses and Operations;
i. Mail, post, shipping, logistics, delivery, and pick-up services. Post offices and other businesses that provide shipping and delivery services, and businesses that ship or deliver groceries, food, alcoholic and non-alcoholic beverages, goods or services to end users or through commercial channels;
j. Educational institutions. Educational institutions—including public and private pre-K-12 schools, colleges, and universities—for purposes of facilitating distance learning, performing critical research, or performing essential functions, provided that social distancing of six-feet per person is maintained to the greatest extent possible. This Executive Order is consistent with and does not amend or supersede Executive Order 2020-05 (COVID-19 Executive Order No. 3) or Executive Order 2020-06 (COVID-19 Executive Order No. 4) except that affected schools are ordered closed through April 7, 2020;
k. Laundry services. Laundromats, dry cleaners, industrial laundry services, and laundry service providers;
l. Restaurants for consumption off-premises. Restaurants and other facilities that prepare and serve food, but only for consumption off-premises, through such means as in-house delivery, third-party delivery, drive-through, curbside pick-up, and carry-out. Schools and other entities that typically provide food services to students or members of the public may continue to do so under this Executive Order on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis only. Schools and other entities that provide food services under this exemption shall not permit the food to be eaten at the site where it is provided, or at any other gathering site due to the virus’s propensity to physically impact surfaces and personal property. This Executive Order is consistent with and does not amend or supersede Section 1 of Executive Order 2020-07 (COVID-19 Executive Order No. 5) except that Section 1 is ordered to be extended through April 7, 2020;
m. Supplies to work from home. Businesses that sell, manufacture, or supply products needed for people to work from home;
n. Supplies for Essential Businesses and Operations. Businesses that sell, manufacture, or supply other Essential Businesses and Operations with the support or materials necessary to operate, including computers, audio and video electronics, household appliances; IT and telecommunication equipment; hardware, paint, flat glass; electrical, plumbing and heating material; sanitary equipment; personal hygiene products; food, food additives, ingredients and components; medical and orthopedic equipment; optics and photography equipment; diagnostics, food and beverages, chemicals, soaps and detergent; and firearm and ammunition suppliers and retailers for purposes of safety and security;
o. Transportation. Airlines, taxis, transportation network providers (such as Uber and Lyft), vehicle rental services, paratransit, and other private, public, and commercial transportation and logistics providers necessary for Essential Activities and other purposes expressly authorized in this Executive Order;
p. Home-based care and services. Home-based care for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness, including caregivers such as nannies who may travel to the child’s home to provide care, and other in-home services including meal delivery;
q. Residential facilities and shelters. Residential facilities and shelters for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness;
r. Professional services. Professional services, such as legal services, accounting services, insurance services, real estate services (including appraisal and title services);
s. Day care centers for employees exempted by this Executive Order. Day care centers granted an emergency license pursuant to Title 89, Section 407.400 of the Illinois Administrative Code, governing Emergency Day Care Programs for children of employees exempted by this Executive Order to work as permitted. The licensing requirements for day care homes pursuant to Section 4 of the Child Care Act, 225 ILCS 10/4, are hereby suspended for family homes that receive up to 6 children for the duration of the Gubernatorial Disaster Proclamation.
t. Manufacture, distribution, and supply chain for critical products and industries. Manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitization, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, petroleum and fuel, mining, construction, national defense, communications, as well as products used by other Essential Businesses and Operations.
u. Critical labor union functions. Labor Union essential activities including the administration of health and welfare funds and personnel checking on the well-being and safety of members providing services in Essential Businesses and Operations – provided that these checks should be done by telephone or remotely where possible.
v. Hotels and motels. Hotels and motels, to the extent used for lodging and delivery or carry-out food services.
w. Funeral services. Funeral, mortuary, cremation, burial, cemetery, and related services.
Q: If Covid19 is contracted while at work could it be considered a work injury?
A: Possibly.
I know that sounds like a “lawyer” answer, but we are in novel times.
The Covid-19 pandemic presents a novel issue with regard to claims for benefits under the Illinois Workers’ Compensation Act (WCA). That Act has a sister Act
called the Illinois Occupational Disease Act (ODA). While it would not necessarily be inappropriate to file a claim under the WCA, the employee would have to prove a specifically identified accident or exposure to the disease under the WCA.
EXPOSURE & EMPLOYMENT:
Benefits under the WCA and the ODA requires proof that the employee actually contracted the disease, and not that they suffered injury due to possibly contracting the disease. Most likely this would need to be proven by qualified medical opinion.
The ODA generally provides the same benefits of the WCA but is more specific as to the prosecution of a claim for contracting a disease in the workplace. In the ODA, the claimant would need to prove, in addition to having contracted the disease, that having contracted the disease is due to exposure to the disease as a result of the employment.
An “Occupational Disease” is defined as a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment. It must be proven that the disease arises out of a risk peculiar to or increased by the employment and not common to the general public.
Under the ODA an employee “shall be conclusively deemed to have been exposed to the hazards of an occupational disease when, for any length of time however short, he or she is employed in an occupation or process in which the hazard of the disease exists.”
NOTICE AND STATUTE OF LIMITATIONS:
It is important for you to remember that you must give your employer notice of disablement due to the disease “as soon as practicable”. Disablement could be any impairment caused by the disease both physically and/or due to loss or reduction of wages.
The Statute of Limitations for filing an ODA claim is three years from the date of disablement if no benefits have been paid under the Act. If benefits have been paid, the Statute of Limitations is three years from the date of disablement, or two years from the date of last payment of compensation, whichever is longer.
NOTE: Firefighters/EMTs/Paramedics are afforded a rebuttable presumption that the condition or impairment arose out of and in the course of their employment and it is rebuttably presumed to be causally connected to the hazards of employment.
At this moment these rebuttable presumptions may not apply to your occupation. However, many States, including Illinois, are reviewing these issues with respect to occupations which specifically place employees in positions with greater exposure to Covid-19. As of this moment no such expansion of the rebuttable presumption exists.
If there are EMT’s and/or Paramedics who you know or with whom you now work, they should be made aware of the above.
(See 4/13/20 Update for expansion of those who are covered by the rebuttable presumption)
COLLATERAL ISSUES UNDER WCA & ODA:
Employees with pending claims under the WCA & ODA
Employees with claims pending under either the WCA or ODA, unrelated to the Covid-19 pandemic, may also have their claims impacted by the current situation.
If an employee with a pending claim is working with limitations due to an unrelated work injury or exposure, and the employer demands they stay home or reduce work hours, then full temporary total disability benefits (TTD) or temporary partial disability benefits (TPD) should most likely be paid.
If an employee with a pending claim is sent for an IME, and that IME is cancelled due to the pandemic, then argument should be made that temporary benefits (TTD/TPD) not be suspended.
If an employee with a pending claim has a scheduled medical examination cancelled at the direction of the treating physician, then argument should be made that temporary benefits (TTD/TPD) not be suspended.
Vaccines for Covid-19
What if the employee experiences a disablement from a vaccine for Covid-19?
ODA: “Any injury to or disease or death of an employee arising from the administration of a vaccine, including without limitation smallpox vaccine, to prepare for, or as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person’s employment or in connection with any governmental program or recommendation for the inoculation of workers in the employees occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act.”
STRESS
Claims for stress can be brought under the WCA/ODA provided the employee can prove:
That the mental disorder caused by the stress arose from a situation of greater dimension than the normal or usual day-to-day emotional strain and tension to which employees are generally subjected to in the work force or in the petitioner’s particular job.
That the stressful condition actually exists on the petitioner’s job.
That the employee’s specific employment conditions were the major contributory cause of the mental disorder when compared to non-employment conditions.
This may not be as simple as it seems. Remember that stress caused by Covid-19 is pervasive in our society at this time, whether on the job or not. Certainly, a better claim can be made for those employees in jobs which would seemingly create greater exposure and therefore stress. However, proof of exposure and causation would require medical documentation. In my personal experience, such claims are difficult but not impossible to prove. But, I have yet to prosecute a claim for stress caused by the current pandemic.
WHAT TO DO
This is intended to be a general discussion of the current status of claims under either Act. As noted at the outset, Covid-19 presents a novel and fluid issue. This document is not intended to be an exhaustive explanation of any possible claim without discussing the facts regarding any potential claim directly with the potential employee. That being said….
DOCUMENT WITH MEDICAL RECORDS/EVIDENCE THE FACT THAT YOU HAVE BEEN INFECTED BY COVID-19
Your medical records will be necessary to prove you have contracted the disease.
NOTIFY YOUR EMPLOYER IMMEDIATELY THAT YOU HAVE CONTRACTED THE DISEASE AS A RESULT OF EXPOSURE DUE TO YOUR EMPLOYMENT
It is always best to do so in writing and/or with a trustworthy witness present. Time is of the essence. This is not an issue you want out there to deny an otherwise valid claim.
COMPILE ANY AND ALL DOCUMENTS, DATA OR EVIDENCE YOU CAN FIND TO ESTABLISH EXPOSURE TO THE DISEASE AS A RESULT OF YOUR EMPLOYMENT
What evidence do you have that you are employed in an occupation or process in which the hazard of the disease exists? Has your employer provided documentation that the hazard or disease exists in your employment? Have co-workers contracted the disease?
CONTACT AN ATTORNEY WHO CAN PROVIDE APPROPRIATE GUIDANCE AND COUNSEL IMMEDIATELY WITH ANY QUESTIONS OR CONCERNS YOU MAY HAVE
This may seem like a blatant ploy for claims, but I assure you it is not. These claims will most likely end up being reviewed and litigated because of the novel issues they present. There are many excellent attorneys handling claims under the WCA and ODA. Choose one who you trust and listen to their advice. Any knowledgeable attorney will tell you that it is better to start down the right path than to spend months trying to correct errors which could have been avoided.
Should you wish to discuss Covid-19 claims under the WCA or ODA, please call me at 312-236-1892.
We hope you, your family and your friends all remain healthy and safe.