Covid 19 Resources

Covid-19 Resources: Illinois


Illinois
2020-05-18

Emergency amendment placed into effect April 16, 2020 by the Illinois Workers' Compensation Commission

An emergency amendment was placed into effect on April 16, 2020 by the Illinois Workers' Compensation Commission.  That amendment referred to Illinois Governor Pritzker's executive order of March 20, 2020 in which he delineated various essential occupations.  While some states have made changes with respect to healthcare workers and first responders, the Illinois amendment went further in that it included workers in all "essential businesses".  Those businesses are listed in the order which is attached. The Governor’s order remains in effect.
 
Basically, the IWCC amendment shifted the burden of proof with respect to COVID-19 situations from the employee to the employer.  Whereas, prior to this, the employee had to produce evidence that his or her condition was related to the employment, under the rule change, if the employee had contracted COVID-19, it was a rebuttable presumption that it was due to his or her work.  The employer could rebut the presumption by producing evidence. However the employer's burden would be a hard one to meet.
 
Much discussion was had with respect to whether or not this was the appropriate way to make such a change.  Many felt there was a lack of due process.  It was suggested it would be more appropriate for both houses of the legislature to pass such a change and then have the governor sign the resulting legislation.

As expected, there was litigation with respect to the emergency amendment.  Business groups sought an injunction and a temporary restraining order to halt the enforcement of the rule change. The temporary restraining order was granted.
 
Another IWCC emergency board meeting was scheduled by conference call on April 27, 2020.  At that time, the Commission voted to repeal the emergency rule regarding COVID-19 that was passed on April 16, 2020.  The chairman indicated that the decision was made to avoid litigation costs with respect to the upcoming temporary restraining order hearing.  There was also a concern that granting the TRO would cause significant delay.  
 
Bottom line, the burden of proof remains the same and the employee has to prove that any condition regarding COVID-19 was related to his or her employment.
 
In a subsequent memo, the chairman indicated that a committee would be formed to examine other possible actions that the Commission might take with respect to the COVID-19 pandemic.  The committee will be co-chaired by commissioners Douglas McCarthy and Deborah Simpson.  However, in the meantime, the burden of proof remains with the employee to prove that the employee's condition of ill being with respect to COVID-19 is due to his or her employment.
 
There has been some discussion indicating that the governor could affect the previous changes by executive order or that legislation could be passed in Springfield which would again put the changes in place.  Nothing has happened in that regard.  However, the legislature will soon reconvene.

Testan Law stands ready to assist you.
 

Executive Order 2020-08

Michael  Taden

Michael Taden
Managing Partner

Chicago
Phone: (312) 541-0448


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