The new rule already is the object of criticism, primarily brought by associations and trade groups representing manufacturers, retailers, and businesses in the hospitality industry. (Image: Shutterstock)

UPDATE: On April 23, a judge in Sangamon County, Illinois issued a Temporary Restraining Order blocking the Workers' Compensation Commission's Emergency Rule from going into effect. On April 27, the Commission filed notice that it will formally withdraw the emergency rule that created a presumption that the workplace was the cause of a COVID-19 infection. The Commission has indicated that it will "try again" to come up with a replacement rule. We will update this post with new developments as they occur.

On April 13, 2020, the Illinois Workers' Compensation Commission issued a "Notice of Emergency Amendment," which is effective immediately and is to remain in place for a maximum of 150 days. The gist of the Amendment is straightforward: If an employee is diagnosed with COVID-19 and is one of the workers identified in the Amendment, then that employee automatically is assumed to qualify for worker's compensation coverage.

Put another way, the employee doesn't need to prove that the infection was acquired while working.

Related: The keys to successful workers' comp claim outcomes

The Amendment provides, in pertinent part, as follows:

1. In any proceeding before the [Workers' Compensation] Commission where the petitioner is a COVID-19 First Responder or Front-Line Worker as defined [in the next paragraph], if the petitioner'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.
2. The term "COVID-19 First Responder or Front-Line Worker" means any individuals employed as police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, health care providers engaged in patient care, correction officers, and the crucial personnel identified under the following headings in Section I Part 12 of Executive Order 2020-10 dated March 20, 2020: "Stores that sell groceries and medicine"; "Food, beverage, and cannabis production and agriculture"; "Organizations that provide charitable and social services"; "Gas stations and businesses needed for transportation"; "Financial institutions"; "Hardware and supplies stores"; "Critical trades"; "Mail, post, shipping, logistics, delivery, and pick-up services"; "Educational institutions"; "Laundry services"; "Restaurants for consumption off-premises"; "Supplies to work from home"; "Supplies for Essential Businesses and Operations"; "Transportation"; "Home-based care and services"; "Residential facilities and shelters"; "Professional services"; "Day care centers for employees exempted by [Executive Order 2020-10]"; "Manufacture, distribution, and supply chain for critical products and industries"; "Critical labor union functions"; "Hotels and motels"; and "Funeral services".

This new rule already is the object of criticism, primarily brought by a group of employers, among them the Associated Beer Distributors of Illinois, the Chemical Industry Council of Illinois, the Chicagoland Chamber of Commerce, and several other associations and trade groups representing manufacturers, retailers, and businesses in the hospitality industry. The group's press release, available on the Illinois Manufacturers' Association website, reads:

"Manufacturers, retailers, grocers, pharmacies, food banks, convenience stores and countless 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. At the same time, many industries are suffering from unprecedented losses and closures including the hotel, hospitality and tourism industry. Yet, this commission chose to suddenly impose a drastic policy change that will significantly increase costs and require employers to pay for medical expenses and salary benefits if an employee is diagnosed with COVID-19 without proof the illness was contracted at the workplace. Many of these industries are waiting for relief from the federal and state government in an attempt to make payroll and retain workers, but will now be on the hook for additional costs if they're lucky enough to re-open when the governor's Stay at Home order is lifted. At a time when the state is discussing how to provide relief for employers trying to maintain jobs, this move runs contrary in every way."

It should be noted this so-called "emergency rule" was adopted with less than 24 hours' notice and sets a disturbing precedent because it may violate the Illinois Open Meetings Act while making substantive rule changes outside of the legislative process. Further, the Governor has been providing daily updates on COVID-19 yet this issue has never been discussed as an emergency.

We expect legal challenges to this emergency rule will be forthcoming. In addition, even if this rule survives those challenges, it remains unclear how it will jive (or not jive) with Governor Pritzker's Executive Order 2020-19, issued on April 1, 2020, which grants "health care providers," as well as employees and volunteer workers at various health care facilities, immunity from civil liability for any injury or death that occurs while they provide health care services in response to the COVID-19 outbreak.

As co-chair of Much's Health Care group, Bob Neiman, who wrote an article on this very topic on April 2, 2020, points out, there is a question as to how far that Executive Order extends, as well as whether the employer of such a "health care provider" enjoys immunity if one of its workers falls ill with COVID-19. Is such a worker entitled to workers' compensation coverage? And if so entitled, does the immunity granted under the Executive Order relieve the employer of liability for workers' compensation claims? We are seeking answers to these questions and will report on them, hopefully in the not-too-distant future.

Neil B. Posner is a principal at Much Shelist.

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