Saying the changes were needed to protect Illinois workers, Illinois state officials have rolled out new emergency rules concerning workers’ compensation claims related to COVID-19.
And the rule changes have alarmed business advocates, as the changes could leave employers facing large new liabilities and difficult decisions about whether they can even afford to stay open amid the current environment of pandemic and the state government’s response to it.
“This is just a ‘Wow!’ type of legal development in Illinois,” said Jeffrey Risch, a labor and employment attorney with the firm of SmithAmundsen in Chicago.
Jeffrey Risch
| SmithAmundsen
On Monday, April 13, the Illinois Workers’ Compensation Commission, acting at the request of Illinois Gov. JB Pritzker, amended its rules to grant easier access to workers’ compensation for millions of Illinois workers infected by the novel coronavirus that causes the COVID-19 illness.
Under previous rules, Illinois employees claiming workers’ compensation were required to present proof to back their claims they had acquired an infectious disease in the workplace, or that it was otherwise attributable to actions taken by their employer.
However, under the new rules, a large swath of Illinois workers would now be presumed to have been infected by the COVID-19 virus while at work.
The new amendment would most prominently apply to health care workers and first responders, such as firefighters and paramedics, who routinely and often knowingly deal with people infected by COVID-19 as part of their regular job duties.
However, the amendment goes still further, as the new rules would also apply to virtually anyone working in a job for a workplace deemed “essential” under the stay-at-home order issued by Pritzker in March.
This would include, for instance, anyone still working at supermarkets, hardware stores, takeout restaurant employees, factories, parcel delivery services, gas stations, day care centers, hotels, trucking and logistics companies, construction companies and laundry services, among many others.
Under the new rules, employers would now be required to provide evidence somehow demonstrating the employees contracted the illness somewhere other than their workplaces or in the course of their work duties.
“The rules for workers’ compensation in Illinois have always been pro-employee, for better or worse,” said Risch.
But this change turns the process of hearing workers’ comp claims “upside down, on its head,” said Risch.
The decision by the Illinois Workers’ Compensation Commission came suddenly, with virtually no advanced warning to businesses. Prior to making the announcement, the Commission had only given notice of an “emergency meeting by telephonic means” scheduled for April 15 to discuss “the further amendment of Rules Governing Practice” before the Commission.
In making the announcement, the Workers’ Compensation Commission said: “The rapid spread of COVID-19 and uncertainty created within the 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 even they are exposed to or contract the virus.”
The changes, however, angered business groups, who questioned whether the Workers’ Compensation Commission had overstepped its bounds, and who worried the new rules would place further stress on employers already reeling from the pandemic and the wide-ranging society-wide economic shutdown imposed by Pritzker and other governors across the country to attempt to control the disease’s spread.
“Manufacturers, retailers, grocers, pharmacies, food banks, convenience stores and countless essential businesses across Illinois are doing all they can to protect workers while also meeting unprecedented demand for food, medical supplies, protective equipment and other important services needed during this time,” the joint statement said. “At the same time, many industries are suffering from unprecedented losses and closures including the hotel, hospitality and tourism industry.
“Yet, this commission chose to suddenly impose a drastic policy change that will significantly increase costs and require employers to pay for medical expenses and salary benefits if an employee is diagnosed with COVID-19 without proof the illness was contracted at the workplace.
“Many of these industries are waiting for relief from the federal and state government in an attempt to make payroll and retain workers, but will now be on the hook for additional costs if they’re lucky enough to reopen when the governor’s Stay at Home order is lifted.
“At a time when the state is discussing how to provide relief for employers trying to maintain jobs, this move runs contrary in every way,” the business groups said.
The business groups further noted the rule changes were “adopted with less than 24 hours’ notice,” which may violate the Illinois Open Meetings Act.” They questioned whether the sudden “emergency” rulemaking would set “a disturbing precedent” for “making substantive rule changes outside of the legislative process.”
They also noted Pritzker had also provided no inkling that such a change in the rules could be forthcoming, despite daily press conferences since issuing a declaration of emergency over the COVID-19 pandemic in early March.
When asked about the COVID-19 workers’ comp rule changes at his daily press conference on Monday, April 13, Pritzker said the pandemic justified the commission’s swift action, with no notice.
“My intent is to protect the workers of Illinois,” Pritzker said.
He further rejected concerns over the cost burden this might place on already struggling businesses, saying: “To the extent that it’s required that … someone has to pick up the tab for that, sometimes that will fall on the people most able to pick up the tab.”
Under Illinois workers’ comp rules, employers would be left with a tab that could include workers’ medical expenses, plus temporary disability benefits generally equal to about two-thirds of a workers’ average weekly wage, with a maximum of $1,549, until the rates are reassessed in July.
Risch said it is likely the commission’s new rules may be challenged as an illegal overreach of the commission’s rulemaking authority.
“This changes the framework of the statute, as contemplated by the (Illinois Workers’ Compensation Act),” Risch said. “Employers may ask, ‘What’s stopping them from doing this for other infectious diseases?’ What about the flu, for instance?”
In the immediate future, however, Risch said the new rules could make some employers reevaluate their decision to even stay open in Illinois and attempt to retain employees, while continuing to do business amid the pandemic and statewide emergency actions.
“It’s going to give employers a lot of pause,” said Risch. “They will certainly question if they can even continue to operate or not.”