Previously this year, the Workers’ Compensation Commission passed an emergency rule which created a rebuttable presumption for first responders and frontline workers. However, that was quickly withdrawn as it was challenged in court. However, the Legislature has moved forward with codifying the emergency rule. In summary, this amendment creates a rebuttable presumption that exposure to, and contraction of, COVID-19 by a COVID-19 first responder or front-line worker arises out of and in the course of the employee employment, and is casually connected to the hazards or the exposures of the employee’s employment.
The term COVID-19 first responder or front-line worker is defined under the Act and includes some of the following individuals:
- Individuals employed as police, fire personnel, emergency medical technicians, or paramedics.
- All individuals employed as and considered first responders.
- All workers for health care providers (including nursing homes, rehabilitation facilities, and home care workers).
- Correction officers
- Any individuals employed by “essential businesses and operations,” as those terms have been defined in the executive order which was previously entered on March 20, 2020, if their employment requires them to encounter members of the general public or to work in locations of more than 15 employees.
This rebuttable presumption applies to all cases tried after June 5, 2020 in which the diagnosis of COVID-19 was made on or after March 9, 2020 and on or before December 31, 2020. It is important to note that employers can rebut the presumption in a number of ways, including by presenting evidence that:
- The employee was working from home and/or on leave from employment for a period of 14 days or more consecutive days immediately prior to their period of sickness resulting from their exposure to COVID-19.
- Employer was engaging and applying to the fullest extent possible industry-specific work place sanitation, social distancing, and health and safety practices based on updated guides from the Center of Disease Control and Prevention or the Illinois Department of Health, or was using a combination of various administrative controls, engineering controls, or personal protective equipment to reduce transmission of COVID-19 to all employees for a at least 14 days before the employee became sick from the exposure to COVID-19.
- The employee was exposed to COVID-19 by an alternative source.
Employees who do not fall in the definition of first responder or front-line worker per the new act, do not get the benefit of the rebuttal presumption and the normal workers’ compensation claims process will be followed. In those cases, the burden would be on the employee to establish that COVID-19 is a disease that arises out of and in the course of employment.
Pursuant to the Act, the employee does have obligations to the establish the rebuttable presumption: COVID-19 must be confirmed by a positive laboratory test for COVID-19 or COVID-19 antibodies, or a confirmed diagnosis of COVID-19 from a licensed medical professional. For purposes of determining the contraction date of COVID-19, the date of contraction is either the date the first responder or essential worker was diagnosed with COVID-19 or was unable to work due to symptoms that were later diagnosed as COVID-19, whichever is first.
An employee who contracts COVID-19, but fails to establish the rebuttal presumption is not precluded for compensation under this act or under the Workers’ Compensation Act.
If you need assistance in determining if your employee falls under this new law and whether the rebuttable presumption applies, the attorneys at Betty, Neuman & McMahon are happy to assist.
This post is written by member/ partner Lori Scardina-Utsinger