Illinois officially has made it easier for certain workers who contract COVID-19 to claim it is an occupational disease for purposes of collecting workers’ compensation. On June 5, 2020, Illinois Governor J.B. Pritzker signed into law House Bill 2455, which amends the Illinois Workers’ Occupational Diseases Act (820 ILCS 310/et seq.) with respect to such claims.
This amendment (codified as Public Act 0633) creates a rebuttable presumption that the 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’s employment, and is causally connected to the hazards or exposures of the employee’s employment.
The term “COVID-19 first responder or front-line worker” includes:
- 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).
- Corrections officers.
- Any individuals employed by “essential businesses and operations,” as those terms are defined in Executive Order 2020-10, dated 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.
Practically speaking, the inclusion of individuals who work for “essential businesses and operations” means the rebuttable presumption can potentially be used by employees in a wide variety of businesses and industries that are not traditionally thought to pose a risk of occupational disease.
The rebuttable presumption applies to all cases tried after June 5, 2020 and in which the diagnosis of COVID-19 was made on or after March 9, 2020 and on or before December 31, 2020. 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 or more consecutive days immediately prior to their period of sickness resulting from exposure to COVID-19.
- The employer was engaging in and applying to the fullest extent possible industry-specific workplace sanitation, social distancing, and health and safety practices based on updated guidance from the Centers for Disease Control and Prevention or the Illinois Department of Public Health, or was using a combination of various administrative controls, engineering controls, or personal protective equipment (PPE) to reduce the transmission of COVID-19 to all employees for at least 14 days before the employee became sick from exposure to COVID-19.
- The employee was exposed to COVID-19 by an alternate source.
Employees who do not fall within the definition of “COVID-19 first responder or front-line worker” (e.g., employees of “non-essential” businesses) do not get the benefit of the rebuttable presumption, and the normal workers’ compensation claims process would be followed. In those cases, the burden would be on the employee to establish that COVID-19 is a disease “arising out of and in the course of employment.” The causation standard to meet this burden under the Illinois Workers’ Occupational Diseases Act is high, in that it must be “apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease.” 820 ILCS 310/1(d).
Given that COVID-19 is a disease common to the general public, it could be challenging for an employee of a non-essential business to prove that they were exposed to or contracted COVID-19 in the course of employment. Evidence that an employer was not following applicable guidelines or of an outbreak among workers could prove critical in such cases.
All employers – whether essential or non-essential – should follow all applicable governmental guidelines and industry standards regarding workplace safety, sanitation, and social distancing, and document those measures to the greatest extent possible to avoid potential workplace risk.