On April 13, 2020, at the direction of Governor J.B. Pritzker, the Illinois Worker’s Compensation Commissioners voted 9-0-1, to enact an emergency rule to the Rules Governing Practice before the Illinois Workers’ Compensation Commission, to address compensability of COVID-19 claims by workers employed in an “essential function.” The rule states that where the employee is a COVID-19 first responder, or “front-line worker,” and if the injury or period of incapacity resulted from exposure to COVID-19 during a COVID-19 related state of emergency, the exposure will be “rebuttably presumed” to have arisen out of and in the course of employee’s employment. The exact text of the emergency rule can be found here. According to the rule, all businesses covered are those listed as essential businesses in the Governor’s executive order from March 20, 2020, found here. Employees covered under the rule include first responders, health care providers engaged in patient care, correctional officers, transportation workers, grocery store workers, food/beverage production employees, shipping and pick-up service workers, educational institutions, restaurants, manufacturing and supply chain workers, hotel and motel employees, charity group employees, suppliers to work from home and essential businesses and operations, and many others. The emergency rule is scheduled to be in effect for the next 150 days, ending on September 10, 2020.
Despite strong public policy arguments, the legality of the IWCC process in adopting this rule has been questioned, as some believe it is potentially in violation of the Open Meetings Act, requiring public bodies to give at least 48 hours’ notice in advance of a meeting.
Additionally, this rule change appears substantive in nature, a move that generally requires legislative approval. While Section 16 of the Illinois Workers’ Compensation Act provides the authority for the Commission to adopt procedural rules, the Act is clear that the rules must be procedural, not substantive, making the full force and effect of this rule unknown at this time.
The concern on legality was posed by a reporter at Governor Pritzker’s press conference on April 13, 2020, to which he responded, “My intention is to protect the workers of Illinois, the people who are most affected by this COVID-19 we are in a pandemic in an emergency [sic]. This is what we need to do right now to protect people.” One wonders why the rule change was adopted by the IWCC, rather than via an executive order from the Governor, similar to Kentucky. It seems to create more uncertainty as to the ultimate outcome of these claims.
As we highlighted in our previous COVID-19 alerts, just because a COVID-19 claim may be compensable, does not mean that the claim will render significant benefits other than minimal lost time and medical, unless the effects of the disease are severe.
The IWCC is scheduled to meet again on Wednesday, April 15, 2020, presumably to discuss this rule, potentially adopt further amendments, and possibly to comply with the 48 rule required by the Open Meetings Act. Further info on the public meeting, and how to participate, can be found here. We will continue to provide timely updates as the COVID-19 situation continues to evolve. If you have any questions on the possible impact of COVID-19 on your business, whether your business may be impacted by this emergency rule, and possible precautions you can take from a legal standpoint, please contact us at Wiedner and McAuliffe by email or phone at 312-855-1105.
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