Amendment to Workers’ Occupational Disease Act Makes It Easier for Employees Who Contracted COVID-19 to Claim that It Was Work Related

Amendment to Workers’ Occupational Disease Act Makes It Easier for
Employees Who Contracted COVID-19 to Claim that It Was Work Related

On June 5, 2020, Governor J.B. Pritzker signed Public Act 101-0633 into law. The pertinent section that businesses should be mindful of is the addition of section (g) to 820 ILCS 310/1. This is the Workers’ Occupational Disease Act (“Act”) which is similar
to the Illinois Workers’ Compensation Act, except that the Act covers “occupational diseases” that arise out of or in the course of employment.

The Act creates a rebuttable presumption in favor of a “COVID-19 first responder or front line worker” who contracts COVID-19 to claim that the exposure arose out of and in the course of employment and that the exposure was causally connected to the
hazards of employment. A “COVID-19 first responder or front line worker” means all police, fire personnel, EMTs, and paramedics, as well as health care workers, and employees employed by essential business and operations as defined in Executive Order 2020-10, as long as one of two conditions are met: (i) the employee employed by the essential business and operation is required by the employment to encounter members of the general public; or (ii) the employee works at an employment location of more than 15 employees, but excludes one’s home or residence, except in the case of home care workers.

The employer may rebut the presumption by evidence that includes, but is not limited to:

1. the employee was working from home, or was on leave, or a combination of both, for a period of 14 days or more immediately prior to the injury or incapacity resulting from COVID-19;

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 from the Centers for Disease Control and Prevention (CDC) or Illinois Department of Public Health (IDPH) or 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 days prior to the injury or incapacity resulting from COVID-19; or

3. the employee was exposed to COVID-19 from an alternate source. The presumption does not apply if the employee’s place of employment was solely the employee’s home or residence for a period of 14 or more consecutive days immediately prior to the injury or incapacity resulting from the exposure to COVID-19.

It is also important to note that the amendment takes effect immediately and will apply to cases where the employee was diagnosed with COVID-19 between March 9, 2020 and December 31, 2020. In other words, employees who have been diagnosed with COVID19 between this time frame may be claiming that exposure to COVID-19 occurred at work.

What This Means for Employers

Based on the Act, employers should do the following:

1. if employees are combining tele-working and working in the office, record the employee’s work location;

2. keep detailed records of employees who are away from the office for reasons such as sick time, personal time, and vacation time;

3. keep apprised of updated recommendations and guidelines from the CDC and IDPH. Industry-specific guidelines from the CDC can be found here: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businessesemployers.html
and IDPH guidelines can be found here: http://www.dph.illinois.gov/covid19. Prepare policies, practices, and procedures for
employees to follow that implement the CDC’s and IDPH’s guidelines and recommendations. Such employment policies will need to be periodically updated. This is especially true as Illinois re-opens in phases and industry requirements will differ;

4. train employees on “best work” practices, such as wearing masks, sanitation, hand washing, and cough/sneeze etiquette;

5. Review the Occupational Safety and Health Administration’s (OSHA) Guidance on Preparing Workplaces for COVID-19 located here https://www.osha.gov/Publications/OSHA3990.pdf which addresses engineering controls, administrative controls, and personal protective equipment to see if any of these are feasible for the employer’s business.

6. determine if an employee’s exposure to COVID-19 is a recordable illness under the OSHA’s revised guidance located here: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.

7. If an employer has as employee that was exposed to COVID-19, that employee may file a claim under the new law. Employers should immediately start gathering information relating to that employee’s work schedule and the protective measures that the employer had in place since March 9, 2020.

If you need legal assistance on a specific matter or would like a review of your forms, policies, or company practices concerning any of the new laws or requirements, please contact Donald S. Rothschild or Brian M. Dougherty.
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Donald S. Rothschild (dsr@gsrnh.com)
Brian M. Dougherty (bmd@gsrnh.com)
Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd.
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Burr Ridge, Illinois 60527
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