The state agency overseeing Illinois’ workers’ compensation system has formally withdrawn controversial new COVID-19-related workers’ comp rules, choosing not to defend them in court after a judge slapped a hold on enforcing them.
On April 27, the Illinois Workers’ Compensation Commission voted to repeal emergency rule changes the Commission had put in place at the urging of Gov. JB Pritzker.
The WCC had voted two weeks ago to amend their rules, to address what they and the governor believed to be a shortcoming in the system, and strengthen the ability of workers who may have been infected with COVID-19 to secure disability wages and healthcare coverage from employers.
Scott Cruz
| Greensfelder
While the new rules were intended to benefit health care workers, first responders and others on the front lines of the state’s response to COVID-19, the rules were extended to include nearly everyone still working amid Pritzker’s stay-at-home order.
This would have included a long list of other workers, including anyone still working at supermarkets, hardware stores, takeout restaurants, factories, parcel deliver services, gas stations, day care centers, hotels, trucking and logistics companies, construction firms and laundry services, among many others.
The new rules essentially would have forced employers to prove their employees did not contract the novel coronavirus that causes COVID-19 while at work, or while performing work duties, or shell out potentially billions more in workers’ comp losses statewide.
Under the state’s workers’ comp system, employers could have been forced to pay for workers’ health care costs, as well as paying them up to two-thirds of their regular wages.
Under current rules, the burden would have fallen on the worker to demonstrate they had been infected at work.
Business groups erupted in response to the new rules. They argued the rules sought to shift the burden of paying for COVID-19 response onto the backs of employers.
They pointed to comments from Pritzker, who had defended the workers’ comp rules by asserting the burden “sometimes … will fall on the people who are most able to pick up the tab.”
More importantly, however, the business groups also argued the new rules had been approved illegally.
They said the power to make those kinds of substantive changes to the scope and reach of Illinois’ workers’ comp rules lies with the Illinois General Assembly, and not the Workers’ Compensation Commission, whose members are appointed by the governor.
The business groups, led by the Illinois Manufacturers’ Association and the Illinois Retail Merchants Association, then filed suit in Sangamon County Circuit Court in Springfield.
Their complaint was further supported in a brief filed by the Illinois Chamber of Commerce and a group of insurance industry associations.
All argued the potential burden that would be imposed, as well as the changes to how employers could defend themselves, meant the rule changes were real and substantial, and not merely “procedural,” as the Commission and the governor had claimed.
Late last week, Sangamon County Judge John M. Madonia granted the business groups’ request for a temporary restraining order.
In that order, he indicated he believed the plaintiffs’ legal challenge had a high likelihood of success.
He also said he believed the workers’ comp rule changes appeared to be more than just a procedural tweaking.
Madonia, a Republican, was elected to the Sangamon County court as a circuit judge in the Seventh Judicial Circuit in November 2014. His term is set to expire in December 2020.
“At its core, this case was based on the Commission far exceeding its rulemaking authority,” said attorney Scott Cruz, who represented the IMA and IRMA. “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."
Cruz represented the plaintiffs in the matter, along with colleagues Thad Felton and Kevin Hormuth, all of the firm of Greensfelder, Hemker & Gale P.C., of Chicago.
In response to Madonia’s ruling, Pritzker said the WCC would rescind the rule changes, but said the Commission intends to “revisit” the matter and “reissue an order.”
The governor has insisted the Commission has the authority to change the rules, absent action from the General Assembly, which has not convened, nor presented any plans to convene, since Pritzker issued an emergency declaration in early March.
In response to the judge’s ruling, and the WCC’s vote to repeal the rule changes, Illinois Manufacturers’ Association President Mark Denzler released a statement, saying:
"Retailers and manufacturers are concerned about the health and safety of their employees, customers, and communities. This case was first and foremost about the rule of law and we appreciate the court ruling in Sangamon County and subsequent repeal of the emergency rule by the Illinois Workers' Compensation Commission. It was clearly an overreach and inconsistent with the traditional rule making process. If left unchecked, this rule would have subject Illinois businesses to billions of dollars in added costs at a time when many are struggling to make payroll and retain employees. Our members employ the largest number of workers in Illinois, represent the largest sales tax revenue generator for the state, and contribute the single largest share of the state's Gross Domestic Product."