In a 9-0-1 vote, the Illinois Workers’ Compensation Commission adopted new Rules in Sections 9030.70(1) and (2) of the Rules of Practice before the Illinois Workers’ Compensation Commission to address workers infected with Covid-19.
A little background first. Under the Illinois Workers Compensation Act and the Illinois Occupational Diseases Act, the legislature created different set of rules regarding the burden of proof required for a special class of individuals. In pertinent part, section 6(f) states as follows:
Any condition or impairment of health of an employee employed as a firefighter, emergency medical technician (EMT), or paramedic which results directly or indirectly from any bloodborne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer resulting in any disability (temporary, permanent, total, or partial) to the employee shall be rebuttably presumed to arise out of and in the course of the employee’s firefighting, EMT, or paramedic employment and, further, shall be rebuttably presumed to be causally connected to the hazards or exposures of the employment.
Only for this special class of individuals, if the petitioner has one of the listed conditions, then the petitioner does not need to present any initial evidence that the condition is related to his employment. Instead, the burden of proof is on the Respondent to present evidence to the contrary to overcome the presumption. This is referred to as “a rebuttable presumption.”
On April 13, 2020 the Commission created a similar expanded presumption with a change in the Rules of Practice. Pursuant to its Emergency Rule Making powers, the Commission edited the Rules of Practice concerning trials before the IWCC to read very much like the “rebuttable presumption” provision of Section 6(f) of the Act, although it has limited this Rule to apply only to COVID-19 claims that allegedly occur during the State of Emergency period. In doing so, the Commission has also expanded the employees who are covered under this section. It is this last part that is so dramatic.
Unlike Section 6(f) of the Act, which is limited to firefighters, paramedics and EMT’s, those that will qualify for this rebuttable presumption include any “First Responder or Front Line Worker,” which is defined within the new Rule as the following: any individuals employed as police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered first responders, health care providers engaged in patient care, correction officers, and crucial personnel identified in the March 20, 2020 Executive Order from Governor Pritzker. The executive order includes a lengthy list of industries/trade/work where the employees are deemed crucial personnel:
- Stores that sell groceries and medicine
- Food, beverage, and cannabis production and agriculture
- Organizations that provide charitable and social services
- Gas stations and business needed for transportation
- Financial institutions
- Hardware and supply stores
- Critical trades (including but not limited to plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and government properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses and Operations)
- 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 Business and Operations (Business that sell, manufacture, or supply other Essential Business 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
- Home-based care and services
- Residential facilities and shelters
- Professional services
- Day care centers for employees exempted by this Executive Order
- 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 produces, petroleum and fuel, mining, constructions, national defense, communications, as we as products used by other Essential Businesses and Operations)
- Critical labor union functions
- Hotels and motels
- Funeral services
This new Emergency Rule is currently receiving significant scrutiny from employers across the country, and we anticipate the legality of how it was created and how it is implemented will be challenged.
Please continue to follow our blog as we continue following this and other developments during these challenging times.