Emergency Rules Repealed

Illinois Workers’ Compensation Commission Breaking News:
Emergency Rules Related to COVID-19 Have Been Repealed

There has been a whirlwind of activity involving the Illinois Workers’ Compensation Commission over the last two weeks.  On April 13, 2020, the Illinois Workers’ Compensation Commission took an unprecedented action.  Without proper advance notice to the public, the Commission held a meeting, voted on and passed some emergency rules in response to the COVID-19 pandemic.  The emergency rules were extremely unfavorable to employers.  The meeting on April 13, 2020 was improper and in violation of the Open Meetings Act. 

After many objections were raised to the new rules, the Commission posted a public notice and scheduled a second emergency meeting of the Commission for April 15, 2020 to discuss and revote on the proposed rules.  The second emergency meeting was intended to eliminate possible challenges to the proposed rules based on improper and inadequate public notice. 

The Commission held a second emergency meeting on the afternoon of April 15, 2020 and voted to enact revised emergency rules related to COVID-19.  Those revised rules superseded the rules enacted on April 13, 2020 and had an effective date of April 16, 2020. 

The emergency rules were broad in nature and substance.  The rules changed Illinois law.  The rules stated that there would be a rebuttable presumption of compensability in favor of any Illinois employee who fell under the classification of a “first responder or front line worker if the injury occurred as a result of an exposure during the Gubernatorial Disaster Proclamation, 2020-38, and any subsequent COVID-19 Disaster Proclamations. 

The rules would have applied to an extremely large number of employees.  The rules would have covered first responders such as a police, fire personnel, emergency medical technicians, paramedics and all individuals working in healthcare.   Moreover, in addition, it included all “front line workers” at businesses considered essential in the governor’s proclamation

This included the following businesses :

  1. Stores that sell groceries and medicine;
  2. Food, beverage and cannabis production and agriculture;
  3. Organizations that provide charitable and social services;
  4. Media
  5. Gas stations and businesses needed for transportation;
  6. Financial institutions;
  7. Hardware and supply stores;
  8. Critical trades;
  9. Mail, post, shipping, logistics, delivery and pickup services;
  10. Educational institutions;
  11. Laundry services;
  12. Restaurants for consumption off premises;
  13. Supplies to work from home;
  14. Supplies for essential businesses and operations;
  15. Transportation;
  16. Home-based care and services;
  17. Residential facilities and shelters;
  18. Professional services;
  19. Daycare centers for employees exempted by Executive Order 2020-10;
  20. Manufacture, distribution and supply chain for critical productions and industries;
  21. Critical labor union functions;
  22. Hotels and motels;
  23. Funeral services.

Employer groups and insurance carriers contended that the emergency rules were improper and illegal. 
On April 22, 2020, the Illinois Manufacturers Association and the Illinois Retail Merchants Association filed a complaint seeking a permanent injunction against the Illinois Workers’ Compensation Commission from implementing the emergency rules.  The complaint was filed in Springfield, Illinois rather than Chicago, Illinois.  In addition to the verified complaint, the plaintiffs filed a motion for a temporary restraining order (TRO) and preliminary injunction. 
The Circuit Judge in Springfield took immediate action and on April 23, 2020, a telephonic hearing was held concerning the complaint and petition for a TRO. 
The following day on April 24, 2020, the Circuit Judge entered an order granting the temporary restraining order and enjoining the Commission from invoking and/or enforcing the emergency rules. 
The Commission was granted the right to file an answer to the complaint by April 30, 2020 and the case was set for further hearing to May 4, 2020. 
In my view, the decision of the Court was absolutely correct.  The Commission had no justification for enacting these emergency rules which were far beyond their rule making authority as an administrative agency.
In response to this order, the Commission issued a memorandum on April 24, 2020 and scheduled an emergency meeting of the Commission for April 27, 2020 at 10:00 a.m.  The purpose of this meeting was to vote on whether or not to repeal the emergency rules. 
On April 27, 2020, the Commission then held a meeting at which time the Chairman proposed entry of an order repealing the emergency rules that were effective on April 16, 2020.  The Chairman recognized the issuance of the TRO and conceded that litigating the validity of the rules would be costly and lengthy.   The Chairman recommended that rules be repealed rather than litigated.  The meeting was brief.  The chairman moved to repeal the emergency rules and all of the commissioners voted in favor of repealing the emergency rules.  The decision of the Commission was unanimous to repeal the rules. 
Therefore, the emergency rules of the Illinois Workers’ Compensation Commission previously published and in effect April 16, 2020 have now been repealed and there are no emergency rules relating to COVID-19 that are in existence before the Illinois Workers’ Compensation Commission.
Analysis and Conclusions
The Illinois Workers’ Compensation Commission’s decision to repeal the emergency rules was a wise one.  The Commission’s emergency rules were substantive in nature.  The rules, if enforced, substantively changed Illinois workers’ compensation law.  The Commission simply does not have that right.  It is beyond their authority as an administrative agency.  Any substantive change in the law must be done by the Illinois legislature, not by the Illinois Workers’ Compensation Commission.
In other states, legislatures have acted and enacted laws to expand benefits for COVID-19 injuries.  Most of the legislation has been directed in creating presumptions of compensability in favor of first responders and some healthcare workers.  Legislation has been signed in Alaska, Wisconsin and Minnesota.  Bills have been introduced in other states as well.  We can reasonably expect that a bill or bills will be presented here in Illinois.  Nevertheless, any legislation passed here will likely be much less broad than the emergency rules passed by the Illinois Workers’ Compensation Commission.  Any law that is enacted would likely only have prospective application and not retroactive application.  The failure by the Illinois legislature to move quickly on this could limit employee rights. 
Per the proclamation of Governor Pritzker, the state of Illinois remains under a stay at home order through May 30, 2020.  The Illinois Workers’ Compensation Commission remains open during this time for emergency proceedings.  The Commission will hold all May 2020 arbitration status calls telephonically.  Any requests for trial filed for May 2020 will be assigned trial dates during the June 2020 trial cycles.
It is reasonable now for us to anticipate the Commission will begin more normal hearing procedures starting June 1, 2020.