New Illinois workers’ compensation law means almost every “essential business” now faces liability to its employees. Some possible protection for emplacing COVID-19 cleaning, safety and health restrictions – Illinois’s breweries, wineries, distilleries, bars, distributors, dispensaries, and restaurants included.
The Illinois legislature has passed a bill that codifies the previously invalidated workers’ compensation rule creating a rebuttable presumption that an employee injured or killed by COVID-19 contracted the virus at work and is entitled to benefits.
The new law, HB 2455 creates a rebuttable presumption against employers – basically making it their obligation to disprove, rather than the employee’s obligation to prove, that their COVID-19 was contracted during employment and not elsewhere, thereby creating liability for the employer for their COVID-9 related injuries:
“[I]f the employee’s injury or occupational disease resulted from exposure to and contraction of COVID19, the exposure and contraction shall be rebuttably presumed to have arisen out of and in the course of the employee’s first responder or front-line worker employment and the injury or occupational disease shall be rebuttably presumed to be causally connected to the hazards or exposures of the employee’s first responder or front-line worker employment.”
At first blush, you might not think that applies to your business, but the definition of COVID-19 first responder or front-line worker basically makes everyone liable. There is a special exemption if the business is not public facing and also has less than 15 employees at the location. The definition in the bill is as follows:
“The term “COVID-19 first responder or front-line worker” means: all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all individuals employed and considered as first responders; all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers; corrections officers; and any individuals employed by essential businesses and operations as defined in Executive Order 2020-10 dated March 20, 2020, as long as individuals employed by essential businesses and operations are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees. For purposes of this subsection only, an employee’s home or place of residence is not a place of employment, except for home care workers.”
That reference to “essential businesses and operations” is a tad misleading as the term was defined in Governor Pritzker’s stay at home Executive Order 2020-10 in no less than four single-spaced pages. As we pointed out back in March, that definition is fairly extensive and includes:
“Essential Businesses and Operations. For the purposes of this Executive Order, Essential Businesses and Operations means Healthcare and Public Health Operations, Human Services Operations, Essential Governmental Functions, and Essential Infrastructure, and … Stores that sell groceries and medicine. … Food, beverage, and cannabis production and agriculture. … c. Organizations that provide charitable and social services. … d. Media. Newspapers, television, radio, and other media services; e. Gas stations and businesses needed for transportation. … f. Financial institutions. … g. Hardware and supply stores. … h. Critical [construction and other] trades. … i. Mail, post, shipping, logistics, delivery, and pick-up services. … j. Educational institutions. … k. Laundry services. … l. Restaurants for consumption off-premises. … m. Supplies to work from home. … n. Supplies for Essential Businesses and Operations. … o. Transportation. … p. Home-based care and services. … q. Residential facilities and shelters. … r. Professional services. … s. Day care centers for employees exempted by this Executive Order. … t. Manufacture, distribution, and supply chain for critical products and industries. … u. Critical labor union functions. … v. Hotels and motels. … w. Funeral services.”
The provision of the law that creates the presumption also provides some descriptions of how an employer may rebut it. These include a right to rebut it by showing that the employer was engaging and applying the whichever the most recent guidance for their industry from CDC or IDPHR (there’s a 14-day grace period on implementation) regarding the best practices for functioning during COVID-19 for social distancing sanitation, and health and safety:
(3) The presumption created in this subsection may be rebutted by evidence, including, but not limited to, the following:
(A) the employee was working from his or her home, on leave from his or her employment, or some combination thereof, 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
(B) the employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability industry-specific workplace sanitation, social distancing, and health and safety practices based on updated guidance issued by the Centers for Disease Control and Prevention or Illinois Department of Public Health or was using a combination of administrative controls, engineering controls, or personal protective equipment to reduce the transmission of COVID-19 to all employees for at least 14 consecutive days prior to the employee’s injury, occupational disease, or period of incapacity resulting from exposure to COVID-19. For purposes of this subsection, “updated” means the guidance in effect at least 14 days prior to the COVID-19 diagnosis. For purposes of this subsection, “personal protective equipment” means industry-specific equipment worn to minimize exposure to hazards that cause illnesses or serious injuries, which may result from contact with biological, chemical, radiological, physical, electrical, mechanical, or other workplace hazards. “Personal protective equipment” 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, vests, and full body suits; or
(C) the employee was exposed to COVID-19 by an alternate source.
The bill is on its way to the Governor for signature.
This goes beyond breweries, distilleries and wineries, and other manufacturers, to restaurants and bars and construction, and the gamut of businesses that were happy to be allowed to remain open under the stay-at-home order, even in a limited capacity.
Now those businesses need to take special precautions and ensure they are emplacing and following IDPHR/CDC guidelines and practices and shouldn’t miss a beat as failing to meet even the minutia could result in not achieving the right to rebut the presumption if a skilled attorney can show they missed a requirement. Employers should keep detailed records of their procedures and policies.