Illinois Legislature Amends Occupational Diseases Act
Creates Rebuttable Presumption in COVID-19 Cases
The Illinois Legislature has now passed new workers compensation legislation in response to the COVID-19 pandemic. The new legislation creates a rebuttable presumption in favor of certain workers if they contract COVID-19.
The Illinois Workers’ Compensation Commission had unilaterally created some new rules creating a rebuttable presumption of compensability in favor of front line/essential workers. Those rules were enacted on April 13, 2020 and met with immediate opposition from business groups and defense lawyers. We argued that the Commission did not have the authority to issue rules concerning compensability. We argued that was a legislative function. After a lawsuit was filed by business groups opposing the rules, the Commission withdrew and repealed their rules on April 24, 2020.
We had expected that the Illinois legislature would take action as many other states had done so. We expected the legislature to craft a statue to benefit at least first responders and healthcare workers.
The statute enacted was essentially an agreed bill. The statute was drafted following an agreement between business and labor groups. The statute passed both houses of the legislature almost unanimously. The legislation passed the Senate by a vote of 50-4 and it passed the House by a vote of 113-2. The statute passed both houses effective May 22, 2020.
The statute was sent to the governor on May 29, 2020. We fully expect the governor will sign the legislation.
The new statute does not amend the Workers’ Compensation Act but instead it creates a new paragraph in the Illinois Occupational Diseases Act – Section 1 (g).
The statute creates a rebuttable presumption of compensability in favor of certain workers who contract COVID-19. The statute has a limited period of applicability. It is only applicable in which a diagnosis of COVID-19 was made on or after March 9, 2020 and on or before December 31, 2020.
In order to prove a case for a diagnosis occurring on or before June 15, 2020, an employee must provide a confirmed medical diagnosis by a licensed medical practitioner or a positive laboratory test for COVID-19. For diagnoses occurring on or after June 16, 2020, an employee must provide a laboratory test proving COVID-19. A medical diagnosis by a licensed medical practitioner by itself is insufficient.
The statute creates a rebuttable presumption of compensability in favor of certain workers. The types of certain workers covered is broad. It includes all first responders or front-line workers.
The statute provides, “In any proceeding before the Commission in which the employee is a COVID-19 first responder or front line worker as defined in the subsection, if the employee’s injury or occupational disease resulted from exposure to and contraction of COVID-19, the exposure and contraction shall be rebuttably presumed to have arisen out of and in the course of the employee’s first responder or front line worker employment and the injury or occupational disease shall be rebuttably presumed to be causally connected to the hazards or exposures of the employee’s first responder or front-line worker employment.”
The term COVID-19 first responder or front-line worker includes:
- All individuals employed as police, fire personnel, emergency medical technicians or paramedics;
- All individuals employed and considered as first responders;
- All workers for healthcare providers including nursing homes and rehabilitation facilities and homecare workers;
- Corrections officers;
- Any individuals employed by essential businesses and operations as defined in Executive Order 2020-10 dated March 20, 2020 as long as individuals employed by essential businesses and operations are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees. An employee’s home or place of residence is not a place of employment except for homecare workers. Front-line workers as defined by Executive Order 2020-10 include workers at the following businesses:
- 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;
- Financial institutions which includes banks, currency exchanges and consumer lenders;
- Hardware and supply stores;
- Critical trades which include building and construction tradesmen and also cleaning and janitorial staff, security staff and other service providers;
- Mail, post, shipping, logistics, delivery and pickup services;
- Educational institutions;
- Laundry services;
- Restaurants for consumption off premises;
- Businesses that sell, manufacture or supply products to work from home;
- Businesses that sell, manufacture or supply other essential businesses or operations;
- Transportation companies;
- Home-based care and services
- Residential facilities and shelters;
- Professional services including law firms, accounting firms and insurance firms;
- Daycare centers for employees exempted by the executive order;
- Businesses that manufacture, distribute and are supply chain for critical products in industries;
- Critical labor union functions;
- Hotels and motels;
- Funeral services.
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.”
Furthermore, the legislative history contained in the passage of this statute shows that the rebuttable presumption created by the statute is an ordinary rebuttable presumption. The statute is intended to follow the holding of the Illinois Appellate Court in the case of Kevin Johnston v. Illinois Workers’ Compensation Commission, 80 N.E. 3d 573, 2017 Ill. App (2d) 160010WC, Filed April 13, 2017. That case interpreted Section 6(f) of the Workers’ Compensation Act which creates a rebuttable presumption in favor of firefighters of compensability in certain cases. That case states that the rebuttable presumption under 6(f) is an ordinary one and not a strong one.
Since the drafters of this statute agreed to follow the Johnston case, the rebuttable presumption created in this new COVID-19 statute is an ordinary rebuttable presumption. Therefore, any contrary evidence is sufficient to successfully rebut the statutory presumption.
Rebutting the Presumption
The statute specifically sets forth a series of three different ways at a minimum that the employer can rebut the statutory presumption.
1. The presumption can be rebutted by showing that the employee was working from his home for 14 or more consecutive days immediately prior to the injury, occupational disease or period of incapacity from COVID-19;
2. The employee was exposed to COVID-19 by an alternate source;
3. The employer was engaging in and applying to the best of its ability, industry specific workplace sanitation, social distancing and health and safety practices based on CDC Guidelines. The employer can rebut the presumption by showing that the employee had been protected consistent with the directives of the CDC for at least 14 days prior to the injury, occupational disease or period of incapacity. This would include the requirement of personal protective equipment including but not limited to face coverings, gloves, safety glasses, safety face shields, barriers, shoes, etc.
Comments and Conclusions
The statute overall is a modest one in terms of its effect on COVID-19 claims.
First and most importantly, it creates an ordinary rebuttable presumption. Such a rebuttable presumption is relatively easy to overcome with some contrary evidence.
Second, the statute itself identifies several ways that the rebuttable presumption can be overturned. Most significantly, an employer can rebut the presumption by providing PPE equipment and following guidelines established by the CDC. Therefore, even if an employee has continued exposure, the employer can avoid the rebuttable presumption by providing evidence of compliance with CDC Guidelines for protection.
The statute is overly broad in that it includes more than first responders and front-line workers like police, firefighter and medical personnel. Additionally, it also includes any and all businesses covered by Executive Order 2020-10. It certainly would have made more sense to have pared down the number of employees covered.
However, to a certain extent, the statute does limit covered employees in that it only creates the presumption in favor of employees at essential businesses and operations wherein employees are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees.
Is Retroactive Application of the Statute Legal/Constitutional ?
There may be challenges to this statute on the basis that retroactive application of the statute is not proper. As a general rule, where the legislature has not specified the temporal reach of the statute, Section 4 of the Illinois Statute on statutes has been interpreted as meaning that “procedural changes to statutes will be applied retroactively, while substantive changes are prospective only.” See Perry v. Department of Financial and Professional Regulation, 106 N.E. 3d 1016, 1026 (Ill. 2018).
In this statute, the legislature clearly intends this rebuttable presumption to be not prospective only.
The statute is intended to be retroactive – specifically dating it back to cases in which the diagnosis of COVID-19 was made on or after March 9, 2020. That is even 11 days before the issuance of Executive Order 2020-10 on March 20, 2020. Certainly, that is before employers had CDC Guidelines on PPE equipment. Further, it is almost a month before the CDC even recommended people wear masks.
Certainly, this piece of legislation is remarkably more acceptable than the emergency rules published by the Illinois Workers’ Compensation Commission initially. This statute is broad but it does give employers hope that they can successfully rebut questionable cases and it further gives employers a path for avoiding the rebuttable presumption entirely by enforcing CDC Guidelines to protect workers.