Illinois Adopts Sweeping Rule Presuming Workers’ Compensation Coverage for Coronavirus-Impacted Workers

On April 13, 2020, the Illinois Workers’ Compensation Commission (IWCC) issued an emergency rule creating a rebuttable presumption that first responders and other essential workers identified in Governor Pritzker’s March 20 Stay at Home Order who develop COVID-19 contracted it in the workplace. Specifically, the proposed emergency rule provides that if the petitioner employee’s:

injury or period of incapacity resulted from exposure to the COVID-19 virus during a COVID-19-related state of emergency, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner’s COVID-19 First Responder or Front-Line Worker employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment.

A rebuttable presumption relieves an employee of having to prove that their injury “arose out of” and “in the course of” their employment. Instead, under the proposed emergency rule, that burden is shifted to the employer to affirmatively prove that the employee did not contract coronavirus in the workplace. In most cases, this will be very difficult for employers to do.

Notably absent from the emergency rule is specific guidance regarding Illinois employers’ obligation to record and report coronavirus-related illnesses on the Employer’s First Report of Injury, a.k.a. the “Illinois Form 45”. By law, employers must keep accurate records of all work-related injuries and illness (except for certain minor injuries) and must report to the IWCC all injuries resulting in the loss of more than three scheduled workdays. 

The range of employees covered by this rebuttable presumption appears to be quite broad. In addition to traditional first responders such as police, firefighters, and emergency medical technicians, the emergency rule specifically identifying workers in all categories of “Essential Businesses and Operations” under the Stay at Home Order except for media. Whether that specific industry omission was intentional or inadvertent is unclear.

The emergency rule has drawn sharp criticism from some quarters because the presumption it creates will dramatically increase employers’ exposure to workers’ compensation claims associated with COVID-19. Indeed, some have questioned the Governor’s authority to adopt this rule, and the action will likely be challenged in court.

For now, employers who employ first responders or operate Essential Businesses and Operations need to be aware of their potential liability for workers’ compensation claims for workers who become ill with COVID-19. Because the filing and completion of the Illinois Form 45 does not constitute an admission of liability under the Illinois Workers’ Compensation Act, employers with covered employees are well-advised to document employee reports of COVID-19 illnesses and injuries on the Illinois Form 45.