On April 13, 2020, the Illinois Workers’ Compensation Commission adopted new Rules in Sections 9030.70(1) and (2) of the Rules of Practice before the Illinois Workers’ Compensation Commission to address workers infected with Covid-19. These rules created a rebuttable presumption that employees who contracted the COVID-19 illness did so in the course and scope of their employment if they were employed in certain jobs previously designated by the Governor as essential businesses and operations in his March 20, 2020 Executive Order. The list of such jobs is expansive.

These Emergency Rules reverse the standard of proof otherwise called for in the Worker’s Compensation Act, and caselaw interpreting the Act, as being on the employee to prove every element of his or her claim by a preponderance of the evidence. As a result of these Emergency Rules, the burden of proof in cases involving potentially thousands of Illinois employees across dozens of fields of employment is now placed on employers to prove that the COVID-19 illness afflicting the employee did NOT arise out of and in the course of the employment. These new Rules were passed by the 10-members of the Worker’s Compensation Commission following an emergency meeting.

• We believe that these Rules constitute a violation of the Commission’s rulemaking authority. It is not clear to us that the meeting or the Rules comply with the provisions of the Open Meetings Act and/or the Administrative Practice Act. Beyond that, the new Rules substantively amend the state statute known as the Worker’s Compensation Act, which is beyond the authority of the Commission. Given the potential for extensive hospitalizations and even deaths arising from such claims, such a reversal in the burden of proof without legislative action constitutes an immediate potential harm to all employers and insurers in Illinois.
• We foresee two bases upon which to challenge the enforcement of the Rules in claims going forward. First, we would likely have to withstand numerous adverse decisions from the Commission until a court on appeal in a given case would agree that the new rules should be voided. Second, and perhaps more expediently, the Rules could be challenged by a declaratory suit in Circuit Court that the Rules are improper and should be nullified, in tandem with an order enjoining the Commission from enforcing them until the court has a chance to review and rule on it.
• Practically speaking, however, until the Rules are amended, rescinded or struck down by a court, we can presume that the Commission Arbitrators will abide by them as to any COVID-19 claims brought by employees in the covered businesses. Demands will be made for benefits, and at least initially, we anticipate Arbitrators will award them. Denials of benefits by respondents, absent a preponderance of evidence to rebut the presumption, might also lead to penalty awards. Given the expansive nature of this pandemic and the industries and occupations covered by the Rules, it will be difficult in many cases to overcome the presumption that the worker caught the disease at work once that allegation is made.
• We anticipate, however, that even if the Rules are successfully challenged, there is every likelihood the Illinois General Assembly will cure any defects in these new Rules with properly passed legislation. Such legislation, however, would at least provide employers and insurers with a voice in the actual bill that is passed and sufficient time to try to prepare for it, neither of which were available with the new Rules.
• Until such time that the new Rules are rescinded, or legislation is properly passed to amend the Worker’s Compensation Act, our position on a given claim will be dictated by the client’s wishes as well as the available evidence to dispute the claim, if that is the chosen course. While much about this disease remains unknown, we are hopeful that one mitigating factor to many such claims may be that the trial exposure in many cases would consist of perhaps just a few weeks of TTD while the employee is recovering, or under quarantine, along with medical expenses. At this time, according to published reports of the disease in Illinois and across the country, in the majority of cases hospitalization is not required, the patient recovers, and medical costs may involve an ER or doctor’s office visit plus medications. Pending more evidence, as more citizens recover and their conditions can be tracked, it is not certain that the disease would lend itself to a PPD award in all cases (barring the more severe cases noted above), though this remains to be seen.