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Workers’ Compensation Update: Coronavirus

These are obviously challenging times for employers across the country. Although there is much about this emerging pandemic that will call for navigating uncharted waters, the analysis of potential workers’ compensation exposure need not be one of those issues. In Illinois, for example, The “Illinois Workers’ Occupational Diseases Act” (820 ILCS 310/) is one statute under which a claim in connection with work exposure to Coronavirus could be alleged in Illinois.  The statute, 820 ILCS 310/1(d), provides in relevant part:

The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when, for any length of time however short, he or she is employed in an occupation or process in which the hazard of the disease exists . . . including any injury to or disease or death of an employee arising from the administration of a vaccine.

Therefore, any claims brought under the Occupational Diseases Act, would generally be limited to individuals in work environments where such  potential exposure would be seen as  a normal aspect of that employment, and not just an incidental  contact unrelated to the nature of their employment.   This might include healthcare workers whose jobs involve regular contact with sick individuals.

The ODA further provides for specific named occupations including EMT’s and firefighters who are granted rebuttable presumptions regarding casual connection which includes lung or respiratory conditions. Actions brought under this statute generally have a lesser burden of proof since the occupation itself is recognized as making it more likely that the worker would suffer an exposure. In essence, the normal accident requirement of arising out of or an increased risk is relaxed based upon the known risks of certain occupations. The majority of people, however, do not work in such occupations, and therefore their claims for Coronavirus exposure would likely fail under the Occupational Diseases Law.

The second avenue   of recovery under the workers compensation system would be a traditional claim under the Illinois Workers Compensation Act. (820 ILCS 305) Such claims would   have to meet the full burden of proving an injury that arose out of and in the course of their employment.   Proving the accident arose out of their employment, that they were more likely than members of the general public to be exposed to Coronavirus because of their employment, could be difficult.  Proving the actual exposure occurred at work, as opposed to elsewhere, may also be very difficult. Therefore, we will generally recommend denying those claims brought under the Illinois Worker’s Compensation Act, with some noted exceptions.

Employees who must travel to infected or high-risk areas as part of their jobs might be able to meet the burden of proof that the infection arose out of a risk incidental to the employment.   Employees on the front line treating infected persons or caring for infected persons will likely meet this burden as well. Additionally, if an employee is diagnosed with the virus, and then  shortly thereafter multiple other co-workers who may have had contact with that employee begin experiencing  symptoms,  and are then diagnosed, those co-workers would seem to have a better chance of showing  an increased risk of infection from the work environment, as opposed  to an outside risk.  It is unclear if, as quarantining becomes commonplace, whether employees who still must commute into work could be viewed as facing a similar type of increased risk as employees who must travel for work into infected areas.

Finally, the Worker’s Compensation Act under Sec. 6(f) contains a similar provision to that of the Occupational Diseases Act, providing a rebuttable presumption regarding causal connection for EMTs and firefighters, including lung or respiratory conditions.

Thanks to Partner Terry Donohue for this timely discussion. Terry represents Illinois and Iowa employers on behalf of the firm. If you have any questions about potential exposure or mitigation strategies in any of the states handled by the firm, please do not hesitate to reach out to us.

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