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Wednesday, June 10, 2020

Governor Pritzker Signs Law Regarding Workers Compensation Rebuttable Presumptions for COVID-19

On June 8, 2020 the Governor signed Public Act 101-0633. This new law provides a rebuttable presumption for workers compensation claims for frontline workers and first responders who claim to have been exposed to COVID-19 while in the workplace. A rebuttable presumption means that it is presumed that the worker was exposed to the COVID-19 virus while in the workplace unless the employer provides certain evidence to the contrary. The injury or occupational disease will be presumed to be causally connected to the hazards or exposures of the employee’s employment unless the employer provides evidence that it was not connected. 

The Act covers those who were or are allegedly exposed to or contract COVID-19 between March 9, 2020 through December 31, 2020. The rebuttable presumption will apply to all cases tried after the effective date of the Act and in which the diagnosis of COVID-19 was made on or after March 9, 2020 and on or before December 31, 2020. 

A COVID-19 first responder or front-line worker is defined to mean all individuals employed as: 
  • police personnel
  • fire personnel
  • emergency medical technicians
  • paramedics
  • individuals employed and considered first responders
  • all workers for health care providers, including nursing homes, rehabilitation facilities and home care workers
  • corrections officers
  • individuals employed by essential business and operations as defined in Executive Order 2020-10 dated March 20, 2020, as long as these individuals are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees. (note: an employee's home is not a place of employment except for home care workers).
  • State or local government employees who were necessary to ensure the continuing operation of the government agencies or providing for the health, safety, and welfare of the public
The new law provides that the employer can rebut the presumption by evidence, including but not limited to the following:
  1. The employee was working from home or on leave from his or her employment for a period of 14 or more consecutive days immediately prior to the employee’s injury, occupational disease, or period of incapacity resulted from exposure to COVID-19; or
  2. The employer was engaged in and applying, to the fullest extent possible and to the best of its ability, industry specific workplace sanitation, social distancing and health and safety practices based on guidance from the CDC and IDPH and was using a combination of administrative controls, engineering controls, or PPE to reduce the transmission of COVID-19 for at least 14 days prior to the employee’s injury, occupational disease, or period of incapacitation resulting from exposure.  PPE includes, but is not limited to, items such as face coverings, gloves, safety glasses, safety face shields, barriers, shoes, earplugs or muffs, hard hats, respirators, coveralls, vest and full body suits; or
  3. The employee was exposed to COVID-19 by an alternate source. 
For all COVID-19 diagnoses occurring on or before June 15, 2020, an employee must provide a confirmed medical diagnosis by a licensed medical practitioner or a positive lab test for COVID-19 or for COVID-19 antibodies.  For COVID-19 diagnoses occurring after June 15, 2002, an employee must provide a positive lab test for COVID-19 or COVID-19 antibodies. 
There are credits available to employers under the new law, including against temporary disability benefits and certain paid leave benefits and other credits otherwise available under the Workers Compensation Act.

Post Authored by Megan Mack and Rob Bush, Ancel Glink


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