Heyl Royster

 


Heyl Royster

 

IL Legislation Proposed to Establish a Rebuttable Presumption for 1st Responders & Frontline Workers

5/26/20

Legislation Proposed in the Illinois Senate and House Establishing a Rebuttable Presumption for COVID-19 Cases for First Responders and Front Line Workers

We want to keep you updated regarding possible legislation that will impact the IWCC and the handling of COVID-19 cases. As we notified you approximately one month ago, the IWCC put forth a new Rule (9030.70) that established a rebuttable presumption in a COVID-19 case. Click here to learn more. However, on Monday, April 27, 2020, Chairman Michael Brennen presented a Motion to Withdraw the Rule and amendment, which was unanimously approved. Click here to learn more.

In the last few days, proposed, almost identical, legislation has been submitted simultaneously in the Illinois Senate and House as SB 471 and HB 2455 that include a new Subsection 1(g) to the Workers’ Occupational Diseases Act (820 ILCS 310/1). These both include proposed language again establishing a rebuttable presumption that exposure and contraction of COVID-19 for first responders and front line workers arises out of and in the course of their employment. This is limited to individuals considered as first responders; health care providers, including nursing homes, rehabilitation facilities, home care workers, corrections officers; and individuals employed by essential businesses and operations as defined in Executive Order 2020-10, as long as those employees encountered members of the general public or work in employment locations of more than 15 employees. In order for the presumption to apply to cases with a COVID-19 diagnosis occurring on or before June 15, 2020, the proposed legislation requires the employee to provide a confirmed medical diagnosis by a licensed medical practitioner or a positive laboratory test for COVID-19 or for COVID-19 antibodies. For cases including a COVID-19 diagnosis occurring on or after June 16, 2020, the employee must provide a positive laboratory test for COVID-19 or for COVID-19 antibodies.

Included in these two bills is a section regarding the employer’s burden of proof, and ability to defeat the presumption that any COVID-19 cases are automatically due to the work environment for those first responders and front line employees. The two bills, as written right now, allow the employer to rebut the presumption by submitting evidence at trial including:

  1. the employee was working from his or her home, on leave from his or her employment, or some combination thereof, for a period of 14 or more consecutive days immediately prior to the employee’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus; or
  2. the employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability industry-specific workplace sanitation, social distancing, and health and safety practices based on updated guidance issued by the Centers for Disease Control or Illinois Department of Public Health or was using a combination of administrative controls, engineering controls, or personnel?protective equipment to reduce the transmission of COVID-19 to all employees for at least 14 consecutive days prior to the employee’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus. For purposes of this subsection “updated” means the guidance in effect at least 14 days prior to the COVID-19 diagnosis; or
  3. the employee was exposed to the COVID-19 virus by an alternate source.

As we all realize the current situation at the IWCC is extremely fluid as it relates to COVID-19 cases, we will continue to monitor this legislation as it moves through our legislature. We will keep you updated regarding any changes to the standards which are currently in place per the per the Illinois Workers’ Compensation Act and Occupational Diseases Act (820 ILCS 305/1 and 820 ILCS 310/1).

If you have any questions or concerns please feel free to contact Toney J. Tomaso or any Heyl Royster workers’ compensation attorney.