Two organizations representing employers across Illinois have filed suit in Springfield against the state, saying a state commission overstepped its authority in approving new rules essentially forcing employers to prove their workers did not contract COVID-19 at work.
On April 22, the Illinois Manufacturers Association and the Illinois Retail Merchants Association filed a complaint in Sangamon County Circuit Court to challenge the rule changes.
The complaint asks the court to slap a restraining order and injunction on the implementation of the new rules.
The complaint asserts the state’s Workers’ Compensation Commission “far” exceeded its “rulemaking authority.”
“The Amendments at issue are clearly substantive in that they create new rights for employees and new obligations for employers,” the business groups argue in a brief accompanying the complaint. “Employers have a protectable interest in being free from invalid lawmaking that blatantly requires employers to carry the healthcare load of a public pandemic.
“That is exactly what is going on here.”
They pointed to public statements by Gov. JB Pritzker, who defended the new rules by saying the burden “sometimes … will fall on the people who are most able to pick up the tab.”
On Monday, April 13, the Illinois Workers’ Compensation Commission, acting at Pritzker's request, 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 case centers largely on the question of whether the rule changes are merely "procedural" and "evidentiary," or whether they make a substantive change to how the state's workers' comp law is interpreted and enforced.
The plaintiffs assert the Workers' Comp Commission cloaked the rule changes in the guise of tweaking procedures. In reality, they said, the new rules award workers' comp claimants a new "substantive right" to make employers climb a steep hill to prove why they should not be forced to pay a large chunk of workers' wages, in addition to their health care costs, should workers be diagnosed with COVID-19.
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.
While the COVID rules would still afford employers an opportunity to rebut the employees' claims, the business groups say the rules, coupled with Pritzker's COVID-related executive orders, make it near impossible to disprove a particular worker contracted COVID-19 at work.
The Commission has rewritten the law to affirmatively state that a mere possibility of contamination is sufficient for COVID-19," the business groups wrote. "This pronouncement of new law is not only inconsistent with black letter law in Illinois, but presumes on nothing more than a hunch that contamination did in fact occur in the workplace.
"The Commission has supplied a causal connection that the employee must otherwise have to prove."
The plaintiffs note, to this point, such "rebuttable presumptions" for other conditions designated as occupational illnesses, have only been created by acts of the state legislature, not by a vote of the Workers' Comp Commission.
The business groups said the new rules put companies of many types and sizes in a bind, questioning if they can even remain open and provide the "essential services" the governor has previously stated they should continue to provide, even amid a pandemic.
"The Commission also has overlooked the chilling effect on employers who are, according to the State, providing essential services during the crisis. In only citing the public interest of self-isolation and self-quarantine, the Commission ignores the public interest in essential services that Illinoisans are dependent upon in this time of crisis," the business groups wrote.
"The financial impact the Amendments will have on employers put them in the untenable position of providing essential services (as deemed essential by the Governor’s March 20, 2020 Order) or closing their doors because they are unable to 'pick up the tab.'”
Similar measures have either been enacted or are pending in other states, including California and New York.
In those states, estimates have predicted a staggering economic impact from such rule changes.
In California, for instance, the Workers Compensation Insurance Rating Bureau of California, predicted an annual price tag of $33.6 billion, amounting to 61% of that state’s total workers’ comp system before the COVID-19 rule changes.
And the New York Compensation Insurance Rating Board estimated the cost impact of that state’s COVID-related rule changes could boost costs by $31 billion. The NYCIRB said the current system, before COVID-19, suffered annual losses of just $8.7 billion.
The plaintiffs challenging the rule changes in Illinois stressed in their filing they are not necessarily challenging the “wisdom” of the new rules.
Rather, they are challenging the ability of the commission to “usurp” the authority to change those rules. They argue that authority is delegated by state law solely to the Illinois General Assembly.
“The substantive law of Illinois, and the wisdom of implementing it, is for the legislature, after proper discourse, and not the whim of the Commission,” said attorney Scott Cruz, who is leading the litigation.
Cruz is with the law firm of Greensfelder, Hemker & Gale P.C., in Chicago.
“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 pandemic,” Cruz said in a release from IRMA and IMA. “At a time when many are waiting for relief from the federal and state government in an effort to make payroll and retain workers, they will now be forced to pay for additional medical and salary costs regardless of whether an employees’ illness was contracted outside of the workplace.”