Emergency Rules Revised
Breaking News: REVISED Emergency Rules Related to COVID-19 Published by Illinois Workers’ Compensation Commission effective 4-16-2020
The Illinois Workers’ Compensation Commission on Monday, April 13, 2020, took an unprecedented action. Without any advance notice to the public, the Commission voted on and passed some emergency rules in response to the COVID-19 pandemic. The meeting was likely improper and a violation of the Illinois Open Meetings Act (5 ILCS 120). After many objections raised to the new rules, the Commission scheduled a new meeting of the Commission for Wednesday afternoon April 15, 2020, to discuss and re-vote on the proposed rules. The new meeting was intended to eliminate possible challenges to the rule-based on inadequate public notice.
After discussion, the Commission voted to approve REVISED Emergency Rules related to Covid-19. These revised rules supersede the rules enacted on April 13, 2020 and have an effective date of April 16, 2020.
The Commission stated the reasons for the creation of these emergency rules were as follows:
The rapid spread of COVID-19 and uncertainty created within regulated industry has necessitated the modification of evidentiary rules regarding practice before the Commission to ensure first responders and front line workers, who are most susceptible to exposure to COVID-19, are afforded the full protections of the Workers’ Compensation Act in the event they are exposed to or contract the virus.
Due to the unprecedented and extreme exigencies created by the nature and timeline of the spread of COVID-19, going through the normal proposed rulemaking process under section 5–40 of the Illinois Administrative Procedure Act (5 ILCS 100/5-40) would create the potential for causing irreparable and irreversible harm to the public interest, public safety, and public welfare. Without the passage of this emergency rule, the uncertainty associated with the prior rules may put an individual in the untenable position of balancing their need to receive a continued paycheck to support their family and making the correct decision to miss work and self-isolate and self-quarantine. Without the emergency rule, individuals may feel forced to act against the public interest, potentially creating an even more dire hazard than the State already faces. There is also the further potential that an individual who is a first responder or essential front-line worker and is capable of providing essential services may choose to miss work or to temporarily withdraw from the workforce out of fear of contracting the virus and being uncertain whether or not they would be afforded the protections of the Workers’ Compensation Act—protections that every working Illinoisan deserves to be confident in and reassured by.
The rule is written to be narrowly tailored to only apply to those people who are first responders or essential front-line workers, to only apply to their employment as first responders or essential front-line workers, and to only apply to exposures that occur during a COVID-19-related state of emergency declared by the Governor. Further, the emergency rule does not guarantee or assure an award of benefits to any individual who suspects he or she has contracted COVID-19 or self-isolates and self-quarantines due to an alleged or suspected exposure to COVID-19, but, instead, creates a reasonable rebuttable presumption that a first responder or front-line worker’s exposure to the virus is connected to their employment.
The emergency rule does not create or diminish any substantive rights of any party, but, instead, speaks to the rules of evidence and procedural rules to be followed by the Commission’s hearing officers for carrying out the duties imposed upon the Commission in the conduct of hearings.
SUMMARY OF THE EMERGENCY RULES
The emergency rules effective 4/16/2020 creates a rebuttable presumption of compensability in favor of employees classified as first responders and front line workers. The rebuttable presumption applies to any first responders and front line workers exposed to COVID-19 during the state of emergency. For those individuals, it will be rebuttably presumed that the individual’s exposure arises out of and in the course of employment and is causally connected to their employment.
These new emergency rules amend and are added to Section 9030.70 pertaining to Rules of Evidence.
This rule currently states only:
The Illinois Rules of Evidence shall apply in all proceedings before the Commission, either upon Arbitration or Review, except to the extent they conflict with the Act, the Workers’ Occupational Diseases Act [820 ILCS 310], or the Rules Governing Practice Before the Workers’ Compensation Commission (50 Ill. Adm. Code Chapter VI).
The emergency rules add two new paragraphs to this section and state:
1) In any proceeding before the Commission in which the petitioner is a COVID-19 First Responder or Front-Line Worker as defined in Section (a)(2), if the petitioner's injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus during the Gubernatorial Disaster Proclamation 2020-38 and any subsequent COVID-19 disaster proclamations, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner's COVID-19 First Responder or Front-Line Worker employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner's COVID-19 First Responder or Front-Line Worker employment. 2) The term "COVID-19 First Responder or Front-Line Worker" means any individuals employed as police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, health care providers engaged in patient care, corrections officers, and the crucial personnel identified under Section 1 Parts 7, 8, 9, 10, 11, and 12 of Executive Order 2020-10 dated March 20, 2020
What is the effect of these Rules?
The intended effect of these Rules is to create a rebuttable presumption of compensability in favor of any employee who fits in any of the above categories who contracts COVID-19 as a result of an exposure during a COVID-19 related state of emergency.
The Rules apply only to exposures during the current state of emergency.
The Rules specifically refer to the governor’s executive order in response to COVID-19 (Executive Order 2020-10, entered March 20, 2020). That executive order went into effect on March 21, 2020 at 5:00 p.m. That order was initially in effect through April 7, 2020 but was subsequently extended and now is in effect through April 30, 2020. (Executive Order 2020-18). These emergency rules would no longer be in effect once the governor lifts the state of emergency.
Who does this apply to?
The Rules apply to any first responder.
A first responder is identified as any individual employed as police, fire personnel, emergency medical technician or paramedics and all individuals employed and considered as first responders, healthcare providers engaged in patient care and correction officers.
In addition, the Rules apply employees of business classified as :
Healthcare and Public Health Operations
Human Services Operations
Essential Government Functions
In addition, the Rules apply to all front line workers.
Front line workers are individuals that work at:
Stores that sell groceries and medicine;
Food, beverage and cannabis production and agriculture;
Organizations that provide charitable and social services;
Gas stations and businesses needed for transportation;
Hardware and supply stores;
Mail, post, shipping, logistics, delivery and pickup services;
Restaurants for consumption off premises;
Supplies to work from home;
Supplies for essential businesses and operations;
Home-based care and services;
Residential facilities and shelters;
Daycare centers for employees exempted by Executive Order 2020-10;
Manufacture, distribution and supply chain for critical productions and industries;
Critical labor union functions;
Hotels and motels;
The Commission expanded its list of employers and business in the revised rules and included every industry that was allowed to continue to function as listed in Executive Order 2020-10.
These are emergency rules and can last for 150 days.
The effective date of these new revised rules is 4/16/2020 – the rules should only apply to cases with dates of accident on 4/16/2020 and after. They should only apply to cases during the period of the Governor’s executive order 2020-10 currently set to expire on 4/30/2020.
Are these rules legal?
I do not believe these emergency rules are legal. It is an attempt to create a new substantive law which determines how the facts of a case are to be handled. This is a matter for the Illinois legislature and not the Commission. I do not believe the Illinois Workers’ Compensation Commission has the rulemaking authority to create a rebuttable presumption in favor of or against compensability. The Commission has never before created such a rule either on an emergency or permanent basis.
The creation of a statutory presumption is a legislative function and not an administrative or judicial function. I believe the Commission has exceed their authority as an administrative agency and the Courts will find the rules to be invalid.
The Illinois Workers’ Compensation Act contains a number of rebuttable presumptions. Prior to these emergency rules, the Rules of the Illinois Workers’ Compensation Commission did not contain any rebuttable presumptions. The only rebuttable presumptions were contained in the Workers Compensation and Occupational Diseases Act.
These emergency rules are intended to and in fact create a legal liability against employers that is not contained in the statute. The creation of a legal liability like this is a statutory function and not an administrative one. This power should be limited to the legislature and not the administrative agency assigned to administer the statute.
I certainly expect these emergency rules to be challenged by employers and carriers. I think it is more likely than not that these rules will eventually be found to be invalid by the courts.
What is a rebuttable presumption?
A rebuttable presumption is a legal term of art. Technically, according to the Illinois Supreme Court, a rebuttable presumption creates a “prima facie case as to the particular issue in question and thus has the practical effect of requiring the party against whom it operates to come forward with evidence to meet the presumption.” Diederich v. Walter, 65 Ill.2d 95, 2 Ill. Dec. 685, 357 N.E.2d 128 (1976).
However, because the presumption is rebuttable, it can be opposed and defeated. Once evidence opposing the presumption comes into the case, the presumption ceases to operate and the issue is determined on the basis of the evidence adduced at trial as if no presumption ever existed. The burden of proof thus does not shift but remains with the party who initially had the benefit of the presumption.
The Court in Diederich explained: “Stated differently, the presence of a presumption in a case only has the effect of shifting to the party against whom it operates the burden of going forward and introducing evidence to meet the presumption. If evidence is introduced which is contrary to the presumption, the presumption will cease to operate.”
Therefore, the creation of the rebuttable presumption as stated in the Emergency Rules does not create strict liability against employers. It does mean that the burden will be on employers to produce evidence to contradict the presumption.
Conclusions and Recommendations
Employers and Carriers should oppose these rules. I recommend opposition voiced both verbally and in writing.
Surprising, the revised rules like the initial rules were passed by the Commission by a vote of 9-0-1. All employer members of the Commission voted in favor of the rules except for Commissioner Coppoletti who abstained. She was the only one who questioned the authority of the Commission to enact the rules. I would have expected the employer representatives to have voted against the rules.
We believe the impetus for the emergency rules was likely Governor Pritzker’s office. It is likely he encouraged the Commission to take this unilateral and likely improper action because he couldn’t get the legislature to take any such emergent action.
It is possible that the rules will only effect claims from 4/16/2020 – the effective date of the rules until 4/30/2020 – the current date of expiration of Executive Order 2020-10. However, I think it is more likely than not that Governor Pritzker will extend the stay at home order into May, 2020.
These emergency rules should not change how employers and carriers handle reported COVID-19 cases. We should continue to investigate each case and determine whether or not they are compensable.
We should recognize based the emergency rule that the Commission will be very lenient in finding compensability for first responders and front line workers. Those cases will require thorough investigation in the event it is decided to dispute and defend them.
I will advise more details emerge from this unprecedented and extremely questionable action by the Illinois Workers Compensation Commission.