As Illinois enters Phase 4 of the Restore Illinois program, more employees beyond essential services on the frontline will be showing up for work. For months, firefighters, Chicago Police Department officers, doctors, nurses, Home Depot employees, Walgreens pharmacists, and Jewel store employees, just to name a few, have been bravely reporting to work and risking exposure to COVID-19. With the recent opening of more industries, there have been reported positive COVID-19 tests across all sectors from a McDonald’s restaurant in Springfield, to the Tyson Food plant and Ford assembly plant in Chicago. With the increased likelihood of exposure to COVID-19 at work, it is critical that employees who contract COVID-19 know their legal rights.
COVID-19 Contracted at Work Infographic
What legal rights do I have if I contract COVID-19?
The legal rights of employees who contract COVID-19 while working have been rapidly evolving. Essential employees infected with COVID-19 have the right to file a workers’ compensation claim against their employer. On June 5, 2020, Illinois Governor J.B. Pritzker signed H.B. 2455 which provides workers’ compensation coverage for essential workers who contract COVID-19. The bill provides death benefits, expanded unemployment benefits, sick pay and leave for individuals infected with the virus. Essential employees’ right to worker’s compensation coverage has been a quickly evolving legal landscape. As you will recall from our prior blog about workers rights and the Coronavirus, in April an emergency ruling provided a presumption that employees contracted COVID-19 at work. However, the ruling was quickly challenged and ultimately repealed in May by the Illinois Workers’ Compensation Commission (“IWCC”). The amendment creates a rebuttable presumption that an essential employee exposed to COVID-19 arises out of employment and is caused by the related employment hazards or risks.
What is a rebuttable presumption?
H.B. 2455 creates a rebuttable presumption that an essential worker who contracts COVID-19 was exposed while working and therefore is entitled to workers’ compensation benefits. What exactly is a rebuttable presumption? A rebuttable presumption standard means an employee does not need to prove he or she contracted the virus while working. The burden of proof is actually shifted to the employer to affirmatively prove the employee did not contract the virus at work. The rebuttable presumption applies to all cases tried after June 5, 2020 and where the diagnosis was made on or after March 9, 2020 but before December 31, 2020.
How can an employer rebut or argue the COVID-19 workers’ compensation claim?
The presumption that an essential worker who contracts COVID-19 was exposed while working and therefore is entitled to workers’ compensation benefits can be defeated by an employer. The legislation lays out several ways an employer can rebut the presumption.
An employer can argue the employee was exposed to COVID-19 from a source outside of employment.
An employer can argue against a claim if the employee was working from home or on leave for at least 14 days prior to the exposure or illness.
The presumption only applies to essential employees. Therefore, it is critical to know if your occupation qualifies as an essential employee and therefore afforded this presumption. The legislation broadly defines COVID-19 first responders or front-line workers as “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.
Essential employees in Illinois include:
emergency medical technicians
all individuals employed and considered as first responders
all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers
any individuals employed by essential businesses and operations who encounter the general public or in locations with more than 15 employees
What if I am not an essential employee and I contract COVID-19 at work?
Employees who do not qualify as a “COVID-19 first responder or front-line worker” are not provided the benefit of the rebuttable presumption. Therefore, the traditional workers’ compensation legal challenges would exist. Critically, the burden of proof would be shifted back to the employee to prove that the COVID-19 exposure arose out of and in the course of employment. The Illinois Workers’ Occupational Diseases Act states: “A disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease. 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.”
With the disease common in the general public, it can be very difficult to prove the exposure occurred during the course of employment. Employees will need to produce evidence to prove the exposure occurred only at work. This could include evidence such as a failure by the employer to follow applicable guidelines as outlined by the CDC or IDPH.
What if my employer asks an employee to sign a waiver?
COVID-19 waivers are becoming more common. Generally, waivers serve to protect businesses from customers but increasingly employers may attempt to request employees to sign waivers. However, the Illinois Workers’ Compensation Act provides employees an exclusive remedy for injured employees that cannot be waived. Both public policy and the act protect employees’ rights to pursue a workers’ compensation claim.
How can I find out if I have a case against my employer for COVID-19 exposure?
If you or someone you know has been exposed to COVID-19 at work and tested positive, please contact the experienced lawyers at The Kryder Law Group to discuss your legal rights at (312) 223-1700 or email@example.com. We are here to help you determine if the H.B. 2455 bill impacts your case. Our consultations are free and confidential, and the specific unique facts surrounding your exposure to the Coronavirus will determine whether you are entitled to compensation under the law and whether you can recover monetary damages.