Employers Pushing Back as States Expand Work Comp to Cover COVID-19

By Jim Sams | April 22, 2020

As more states take action to ensure workers who contract COVID-19 are eligible for workers’ compensation, employers in Illinois are hoping to block one of the nation’s most expansive emergency rules.

The Illinois Technology & Marketing Association (TMA) said in a statement that it has joined other business groups seeking a temporary restraining order to block an emergency rule adopted by the state Workers’ Compensation Commission.

The commission’s decree amends it rules of evidence to create a presumption that COVID-19 is a compensable occupational disease if contracted by any of the “front line” workers employed by businesses that were allowed to remain open during the pandemic emergency. The rule took effect on April 16.

The TMA and other employer groups say the commission has overstepped its authority. The TMA noted that Illinois workers’ compensation law creates a presumption for some first responders who contract respiratory diseases, but doesn’t allow the commission to add to the types of employees who are eligible for that presumption.

What’s more, the commission’s order threatens to undermine the “increased risk” doctrine that has long been used in Illinois to determine if an occupational disease is compensable, the TMA said. That doctrine holds that a workers’ compensation claimant must show that they were at greater risk of injury than the public because of the requirements of their job.

The Goldberg Segalla law firm said in a blog post Monday that it is unclear whether the rule requires a positive COVID-19 diagnosis or whether workers who self-isolate because they are afraid of exposure to the virus will qualify.

“Though it may not have been the commission’s intent to cast such a wide net, the language of the final rule invites broad interpretation and illustrates why such hurried rulemaking is generally disfavored,” Goldberg Segalla said.

Chicago workers’ compensation attorney Shawn Biery, a partner with the Keefe, Campbell, Biery & Associates law firm, noted in a blog post Tuesday that the commission first passed the emergency order on April 13, and then passed an amended version on Aug. 15. Biery said the commission neglected to include all of the “front line” workers that were included in Gov. J.B. Pritzker’s order that declared a medical emergency in its first order. The commission added those workers to the rule when it met the second time.

Biery said the commission clarified at its April 15 hearing that the emergency rule won’t be applied retroactively, eliminating some initial confusion about the effective date.

“It remains to be seen how the IL WC commission will assess COVID-19 exposure claims with dates of exposure alleged before April 16, 2020,” he wrote. “Those workers are clearly beholden to the traditional preponderance of the evidence standard and not afforded any presumption of work-related exposure.”

Both Biery and Goldberg Segalla recommended that employers investigate each COVID-19 claim received. Employers should learn when symptoms began, whether anyone at the employee’s home or work site was also diagnosed with COVID-19 and whether the claimant complied with the state’s stay-at-home order, Goldberg Segalla said.

A spokesman for the Illinois Workers’ Compensation Commission refused to comment on the issues raised by the employer advocates.

Kentucky Gov. Andrew Beshear issued a similar executive order on April 9 that created a COVID-19 presumption for workers in grocery stores, child-care centers, domestic violence shelters and rape crisis centers, in addition to first responders and healthcare workers. The Kentucky Labor Commission later posted a guidance stating that any temporary total disability benefits payable under the executive order will be offset by emergency Family Medical Leave Act benefits passed by Congress in late March that allow up to 16 weeks of paid leave to workers who contract COVID-19.

Arkansas, North Dakota and Michigan have also adopted emergency rules to expand eligibility for workers’ comp benefits to include COVID-19, but not to the extent of Illinois and Kentucky.

Rules passed by the Michigan Compensation Disability Compensate Agency, which took effect on March 30, require employers to compensate any first responders or health care workers who contract COVID-19. The rules state that employers that deny such claims can be cited for violate the state workers’ compensation law.

An April 14 order by Arkansas Gov. Asa Hutchinson suspends provisions of state law that normally bar workers’ compensation benefits for occupational disease to which the general public is exposed. The order states that front-line healthcare workers who test positive for COVID-19 may be eligible for workers’ compensation if they can demonstrate a causal connection to employment.

An April 16 order by North Dakota Gov. Doug Burgum extends workers’ compensation benefits to first responders, healthcare workers and funeral workers. North Dakota operates a monopoly state workers’ comp system through its Workforce Safety Insurance agency.

The Minnesota state legislature was one of the first to act. House File 4537 signed into law on April 7, creates a COVID-19 presumption for first responders; nurse or health care workers, correctional officers, corrections and detention officers, health care workers and assistants in home care, or nursing homes, and workers required to provide child care to first responders and health care workers.

State legislatures in Utah, New York, Ohio, Louisiana and California are considering similar legislation.

About Jim Sams

Sams is editor of the Claims Journal, which his a part of the Wells Media Group. He can be reached at jsams@wellsmedia.com.

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