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The Illinois Workers’ Compensation Commission has approved an emergency administrative rule (“Rule”) impacting COVID-19 claims across the state. Implementation of the new Rule creates a rebuttable presumption that first responders, health care workers and other essential employees diagnosed with COVID-19 contracted the virus in the course of their employment. The presumption includes those employees working remotely and those not currently on the job.

The proposed Rule provides that if the employee’s illness or period of incapacity resulted from exposure to the virus during a COVID-19 related state of emergency, the exposure will be presumed to have arisen out of and in the course of employment as well as causally connected to it. This presumption relieves employees of their burden of proof, shifting the unenviable task to the employer of affirmatively proving that its employee did not contract COVID-19 in the workplace. There is no direct guidance as to what is required to overcome this presumption.

The range of employees covered by the Rule looks to be rather broad. The Rule specifically recognizes, in addition to first responders and public safety employees, most workers listed in the categories of “Essential Businesses and Operations” as laid out in Governor Pritzker’s Stay at Home Order, with few exclusions.

The Rule contains no direction regarding Illinois employers’ obligation to record and report coronavirus-related illnesses on the Employer’s First Report of Injury, more commonly known as a Form 45. Illinois law requires accurate record keeping of all work-related injuries and illness and further requires that employers report to the commission all injuries resulting in a loss of more than three scheduled workdays. Certain minor injuries are excluded from this record keeping and reporting requirement.

While the Rule is being embraced by affected employees, it is not without its critics who believe its application will dramatically increase exposures to workers’ compensation claims for employers who are already struggling to stay afloat in this time of crisis. A group of nine Illinois employer organizations have opposed the Commission’s steps to ease the process for essential workers and have questioned the state agency’s ability to create rules without substantive legislation behind it. In addition, challengers question whether this Rule is being enacted during a true “emergency” and suggest that it may violate the Open Meetings Act which requires 48 hours notice by the Commission of any special meeting to discuss public business.

At this time, employers of essential workers should be aware of the potential exposures and liability related to COVID-19 related workers’ compensation claims and continue to follow the challenges that are sure to come. Whatever the result, employers are best served to document employee reports of COVID-19 related illnesses and take appropriate steps to safeguard against workplace transference.

If you have questions about how this Rule affects your organization, please contact Johnson & Bell Shareholders, Christopher J. Carlos, Joseph F. Spitzzeri, Genevieve M. LeFevour, Brian C Langs or the Johnson & Bell attorney with whom you regularly work.

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