Monday, April 27th, 2020

Temporary Holdup for Workers’ Compensation Commission’s Emergency Regulations

While it feels like time at home is passing slowly for many, responses to COVID-19 are changing rapidly. The Workers’ Compensation Commission’s emergency regulations, issued recently to protect first responders and front-line workers exposed to COVID-19, have been challenged as exceeding the Commission’s authority. A Sangamon County judge issued a temporary restraining order to stop the emergency regulations from being implemented and a hearing on the matter has been scheduled.

The emergency regulations were issued on April 15, 2020 by the Workers’ Compensation Commission, not by the Illinois legislature, and stated that any injury or incapacity due to COVID-19 exposure to first responders and front-line workers that happens during the state of emergency “will be rebuttably presumed to have arisen out of and in the course of the petitioner’s COVID-19 First Responder or Front-Line Worker employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment.” See 50 Ill. Adm. Code 9030.70(a)(1) (April 15, 2020). This is a change from the general rule that petitioners bear the burden of proving that contagion to an infectious disease arose out of their employment and directly in the line of their duties while working. The Illinois Retail Merchants Association and the Illinois Manufacturers Association’s lawsuit argues that the Commission exceeded its rulemaking authority and did not follow the statutory requirements relating to changes to rules.

Municipalities face uncertainties during this time with questions as to whom the emergency regulations will apply. While the regulations apply to first responders, what other municipal workers may fall under this presumption? The emergency regulations define “COVID-19 First Responder or Front-Line Worker” to include personnel identified under the Essential Governmental Functions portion of Executive Order 2020-10, which states in relevant part:

For purposes of this Executive Order, all first responders, emergency management personnel, emergency dispatchers, court personnel, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support Essential Businesses and Operations are categorically exempt from this Executive Order.

Essential Government Functions means all services provided by the State or any municipal, township, county, subdivision or agency of government and needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety and welfare of the public, and including contractors performing Essential Government Functions. Each government body shall determine its Essential Governmental Functions and identify employees and/or contractors necessary to the performance of those functions.

Illinois Executive Order 2020-10. Without case law to test the emergency regulations, municipalities are left to wonder if the regulations apply only to those employees municipalities identified as performing essential functions, or if the regulations might also include employees who have continued to perform non-essential duties, perhaps even from home. Some insurers and risk management agencies are also questioning whether at-home workers should even be subject to the presumption. Further, we do not yet know if municipal designations of essential and non-essential workers is disputable. While Executive Order

While the Sangamon County court case has halted the emergency regulations for now, how these cases will be handled may take years to answer. In the meantime, and in the face of these uncertainties, municipalities should follow the Center for Disease Control and health departments’ recommendations for businesses and abide by the Governor’s Executive Orders on social distancing and wearing face coverings to help limit potential liability.

Author: Brandy S. Quance