The Return of the Workers’ Compensation Rebuttable Presumption

Last week, the Illinois General Assembly passed House Bill 2455, which amends the Workers Compensation Act to create a rebuttable presumption that a first-responder or essential worker who contracts COVID-19 did so in the course of his/her employment and would be entitled to workers’ compensation benefits. The bill is awaiting signature by Governor Pritzker.

As reported in our previous alert last month, the Illinois Workers Compensation Commission (IWCC) adopted a similar rebuttal presumption of work-relatedness for first responders and essential workers who contract COVID-19. The rule, however, was subsequently withdrawn after a state court judge in Springfield blocked its enforcement.

The New Rebuttable Presumption Standard

A rebuttable presumption relieves an employee of having to prove that his injury “arose out of” and “in the course of” his employment. Accordingly, as applied here, the burden is shifted to the employer to affirmatively prove that the employee did not contract COVID-19 in the workplace.

House Bill 2455 creates two temporary presumptions specific to COVID-19. First, the legislation creates, for the purpose of death benefits, a rebuttable presumption that a police officer or firefighter who dies as a result of COVID-19 contracted the virus on the job. The officer or firefighter must have contracted the virus between March 9 and Dec. 31, 2020.

Second, the legislation creates an injury/occupational disease presumption that “COVID-19 first responders or front-line workers” who contract COVID-19 did so in the course of their employment. The legislation broadly defines “COVID-19 first responders and front-line workers” to mean “all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all individuals employed and considered as first responders; all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers; corrections officers; and any individuals employed by essential businesses and operations as defined in Executive Order 2020-10 dated March 20, 2020, as long as individuals employed by essential businesses and operations are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees.”

Unlike the IWCC’s withdrawn rule, the legislation lays out several ways in which an employer can rebut a worker’s claim. Those include demonstrating their workplace was following up-to-date public health guidelines for two weeks before the employee contracted COVID-19, that the  employee was working from home for a period of at least 14 days before being infected, or that the employee was exposed to the virus by an alternative source outside the workplace.

The legislation further specifies that the rebuttable presumption applies to all cases tried after the effective date of the Act (i.e. when the Governor signs it the bill into law) and in which the diagnosis of COVID-19 was made on or after March 9, 2020 and or before December 31, 2020. Finally, the legislation provides that the COVID-19 cases filed under this legislation shall not increase or affect the employer’s workers compensation insurance experience rating or modification.

Illinois Gov. J.B. Pritzker has 10 days from the bill’s passage to sign it into law.

In light of this new legislation, Illinois employers should take several steps to mitigate their potential liability for employees who become ill with COVID-19. Employers should continue to encourage employees who can work from home to do so. Employers should also follow current guidance from federal, state, and local governments to reduce the risk of infection and exposure in the workplace, and should document their efforts. Finally, if an employer learns that an employee has been exposed outside of work, the employer should document the potential exposure.

For more detailed questions, please contact the author of this post or any other Franczek attorney.