Illinois Essential Workers Entitled to Workers’ Compensation

During this COVID-19 pandemic, many unions have argued their members are in a proverbial Catch-22.  While employees understand they should not go to work with symptoms of COVID-19, they also cannot miss a paycheck.  Complicating matters for those employees, especially those who work as health care providers or first responders, they are exempt from the sick leave benefits provided by the Families First Coronavirus Response Act (“FFCRA”), leaving them to either use their accrued PTO or take the leave unpaid.  In these situations, unions have demanded to negotiate paid sick leave or “hazard pay,” even though most collective bargaining agreements do not obligate employers to engage in such mid-term bargaining.

Perhaps understanding this quandary, the Illinois Workers’ Compensation Commission (“Commission”) approved an emergency rule, effectively immediately and for the next 150 days, where health care providers and first responders with COVID-19 are assumed to have contracted it at work, and, hence, are eligible for workers’ compensation benefits.  These benefits include a portion of the employee’s compensation (typically 2/3s) and payment for all medical bills related to the diagnosis.

It is likely that, even in the absence of this emergency announcement, employees who directly treat patients with COVID-19 would have access to workers’ compensation benefits.  What was unexpected was the emergency rule allows any employee who works for “essential businesses” to also claim these benefits without requiring proof they caught the virus at work.  Those who work at nursing homes, grocery stores, pharmacies, restaurants open for delivery/curbside service, marijuana dispensaries, etc. can file for comp benefits even if they were not treating COVID-19 patients in the discharge of their duties.  As of April 16, Illinois had over 25,000 confirmed cases of COVID-19; with this new rebuttable presumption, cost of workers’ compensation insurance may skyrocket.

Employer organizations such as the Illinois Manufacturers’ Association, Illinois Retail Merchants Association, and the Associated Beer Distributors of Illinois have vowed to fight the emergency rule, including litigation.  At issue is the Commission’s authority to enact a policy outside the legislative process without providing more than 24 hours’ notice (and possibly violating the Illinois Open Meetings Act).

Employers in Illinois should consult their in-house or outside counsel, their insurance carrier(s), and any attorneys appointed by those carriers to discuss any questions they may have regarding this development.