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In what may be the first judicial review of its kind in the United States, Sangamon County Circuit Court Judge John M. Madonia has granted a temporary restraining order, enjoining enforcement of Illinois’ new workers’ compensation rule for presumption of work-relatedness of COVID-19 injury claims.
On April 16, 2020, the Illinois Workers’ Compensation Commission enacted an Emergency Amendment to the Illinois Administrative Code, creating a rebuttable presumption of work-related COVID-19 exposure for any “first responder” or “front-line worker” seeking benefits as a result of “exposure” to the COVID-19 virus during the state of emergency.
Based on this new rule, covered employees were not required to offer evidence that the exposure occurred while they were working, leaving employers and their carriers with the burden to somehow offer evidence that the exposure occurred outside the context of work.
Workers’ explicitly covered by the rule include police, fire personnel, emergency medical technicians, paramedics, law enforcement, and other first responders. However, the rule also applies to all “crucial personnel” referenced in the governor’s executive order. Therefore, the rule effectively applies to any employee of an “essential business” permitted to stay open during the COVID-19 pandemic.
A consortium of private retailers and manufacturers filed suit to challenge the commission’s legal authority to enact the new rule. By decision and order dated April 24, 2020, Judge Madonia enjoined enforcement of the new directive. Illinois Manufacturers’ Assoc. et al. v. Illinois Workers’ Compensation Commission and Michael J. Brennan, Case No. 2020-CH-98.
In granting preliminary relief, Judge Madonia concluded that the petitioners demonstrated a sufficient likelihood that they would prevail in their ultimate challenge of the new rule. Although the court’s temporary restraining order was, of course, temporary pending outcome of the suit; following Judge Madonia’s ruling, the Illinois Workers’ Compensation Commission conceded the dispute by repealing the emergency rule.
Although the Illinois emergency decree was enjoined and repealed for an apparent procedural breach, the rule contains language that is substantively indistinguishable from numerous provisions that have been enacted or that are under consideration in other states.
Whether by legislative enactment, executive order or administrative decree, these provisions alter the burden of proof in compensation claims filed by designated classes of workers, many of whom have limited or no actual contact with members of the public, by eliminating the need to offer evidence that COVID-19 resulted from exposure in the course of employment.
While Chartwell Law continues to support the efforts of first responders and other workers exposed to a heightened risk of infection, it must be recognized that much of the proposed legislation is deeply flawed. Although laudable in their broader objectives, these enactments lack necessary precision, ignore the epidemiology of COVID-19, and may prejudice rather than enhance the ability of ill workers to gain compensation.
For those employees suffering from COVID-19 related wage loss, state-based workers’ compensation programs may simply not provide best dollar value as existing federal programs. Under the CARES Act, signed into law on March 27, 2020, three new alternate routes to compensation were established: enhanced sick leave, enhanced FMLA with pay, and enhanced unemployment. Due to the lower maximum workers’ compensation rates, and higher maximums for the new federal benefits, many affected workers will get more money per week under federal benefits. Using existing federal benefits also avoids the inevitable constitutional challenges, litigation, and delays that reliance upon presumption statutes will bring.
These presumptions, while driven by positive intent, have been enacted without regard for epidemiologic reality. Medical professionals have recognized from the start that COVID-19 has been spreading not only by symptomatic individuals but by individuals with latent (e.g., asymptomatic) infections. A presumption an individual contracted the illness at work, as opposed to from household members or from the community at large is not supported by epidemiology.
