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COVID-19 and Illinois Workers’ Compensation: How to Avoid a Tsunami of Claims

Thursday, June 18, 2020
COVID-19 and Illinois Workers’ Compensation: How to Avoid a Tsunami of Claims
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In addition to death and taxes, the one thing you can count on are changes involving COVID-19. Effective June 5, 2020, there has been clarification of the compensability of COVID-19 cases for Illinois employers.  

What does this mean to you as an employer? What steps should you take to ensure the condition was “out of” and “in the scope of” their employment?  

Illinois’ Governor Pritzker signed HB 2455 into law on June 5th. The law became effective immediately and covers all “essential workers” as defined in Executive Order 20-10 (definitions included in the link below). The new law is intended to provide workers’ compensation benefits to essential workers who contract COVID-19 in the course and scope of their employment. 

A previous executive order, mandating work comp benefits for Illinois essential workers, was reversed by the courts because changes in work comp law must originate from the legislature. The legislature prepared these changes and presented the bill to the Governor for signature. 

The law retroactively covers essential workers who claim work-related cases of COVID-19 from March 9, 2020, and is in effect through December 31, 2020. While the law also prohibits insurers from including the cost of COVID-19 claims in the calculation of the experience modification rating, insurers still have other mechanisms to recover their costs and increase the amount of premiums paid by employers.

Employee protections for medical testing and treatment have been addressed outside of the workers’ compensation coverages. Group Medical Plan Mandates and Federal Laws under the FFCRA and CARES Act have addressed and extended many employee protections for medical out-of-pocket and leave of absence assistance. The use of Workers’ Compensation fills a gap of those employees not on the group medical plan or those extreme cases that exhaust coverage afforded by the other protections already in place.   

Employees claiming work-related cases of COVID-19 between March 9 and June 15 must provide a confirmed medical diagnosis by a licensed medical practitioner, or a positive laboratory test for COVID-19 or COVID-19 antibodies. Employees claiming work-related cases of COVID-19 between June 15 and December 31 must provide a positive laboratory test for COVID-19 or COVID-19 antibodies.

The law covers essential workers exposed to the general public during work or essential workers in locations with 15 or more employees.

This new law provides a rebuttable presumption that a COVID-19 case was contracted in the scope and course of employment for essential workers, but with the following notable and important exceptions:

  1. 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
  2. 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; or
  3. The employee was exposed to COVID-19 by an alternate source.

Exemption #1 above should be easy to establish and makes perfect sense. An employer should not be held responsible for work-related COVID-19 cases that occur outside of the workplace. Exemption #3 also makes sense but will be difficult to establish as proof of where exposure actually occurred is nearly impossible to produce.

Exemption #2 is an employers’ best opportunity to avoid COVID-19 workers’ compensation claims. Employers that make a good faith effort to prevent the transmission of the virus in the workplace protect themselves from the financial consequences of a COVID-19 claim. Employers will need to establish they were following guidance issued by the CDC or Illinois Department of Public Health (IDPH) by utilizing administrative controls, engineering controls, and personal protective equipment. 

By implementing programs compliant with CDC and IDPH guidelines, employers can establish the rebuttable presumption the COVID-19 case is not work-related. The same approach can be used to protect employers from OSHA violations for COVID-19 hazards in the workplace. 

The most effective method of establishing the rebuttable defense is to complete an assessment of the workplace and develop a comprehensive exposure control plan. The plan provides a roadmap for the employer to follow to prevent the spread of COVID-19 in the workplace. Horton Safety Consultants has been assisting clients in developing and implementing practical, yet effective, exposure control plans since COVID-19 shelter in place orders were established in March. 

Please contact Horton if you’re interested in a plan that can help protect your workplace from COVID-19 workers’ compensation claims and COVID-19 related OSHA inspections. 

Learn more about the Illinois Essential Businesses & Operations.

 


Please consider registering for our upcoming webinar, COVID-19, and Workers Compensation in Illinois

 

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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