Sherwood Law Group and its attorneys are constantly updating our clients about their rights during these uncertain times and in response to the COVID-19 Pandemic. One of the many questions we as a nation face in wake of this global pandemic is what happens if you, as an essential worker or a first responder, contract and test positive for COVID-19? Below is a current analysis where we try to answer some of those questions. As always, for questions or inquiries regarding all workers compensation, personal injury and employment matters, do not hesitate to contact Sherwood Law Group at 312.627.1650 or firstname.lastname@example.org.
One of the first things on every essential and non-essential employee’s mind right now is “Am I entitled to some form of compensation if I get COVID-19 and am unable to go to work?” In Illinois, up until April 23, 2020, the answer to that question was yes, under the Workers’ Compensation Commission emergency COVID-19 Rule.. However, the answer to that question is no longer that simple due to the fact that on April 23, 2020, a judge in Sangamon County, Illinois, issued a Temporary Restraining Order which effectively blocked the Workers’ Compensation Commission’s Emergency COVID-19 Rule from going into force and effect. Four (4) days later, on April 27, 2020, the Commission filed notice stating that “it will formally withdraw the emergency rule that created a presumption that the workplace was the cause of a COVID-19 infection for essential workers and front line workers.” Since then the Commission indicated it will “try again” in terms of coming up with a replacement rule.
Under workers' compensation laws in many jurisdictions, including Illinois, certain diseases can be considered work related due to the worker being exposed to the cause of the disease/injury while at work. When that is the case, the burden is on the employer to show the disease/injury came from another cause other than the employee being in the course and scope of his/her employment or at the workplace when the disease was contracted. These diseases/injuries are often termed occupational diseases. The question now becomes, is COVID-19 an occupational disease that would grant an employee compensation if he/she were to contract the disease while performing duties as an employee in the course of employment?
Since Governor Pritzker issued a statewide shelter-in-place ordinance on March 21, 2020, followed by the May 1, 2020, mask requirement, the question is whether individual social and recreational compliance with these orders would place the burden back on the workplace as a presumptive cause of any contraction of the disease? Those advocating for the employee protection under the workers compensation statute could argue that due to the multitude of state-wide safeguards, if not for being at work, essential employees (or non-essential when returning to work) would be at a much lower risk of contracting COVID-19 outside of the workplace and in turn, make the disease an occupational disease as otherwise classified per the statute.
The Illinois Workers Compensation Act views diseases such as asbestosis among asbestos miners and those who work with friable asbestos insulation, as well as black lung among coal miners, as clear-cut occupational diseases that are compensable. Similar occupational diseases that are assumed to have been contracted at work are silicosis among miners, quarrying and tunnel operators, and byssinosis among workers in parts of the cotton textile industry. Each of these occupational diseases rely on the “but for” test to determine whether or not they are assumed to be a direct result of work-related activities. Specifically, asbestosis miners, “but for” their job would not have contracted asbestosis, or tunnel operators, “but for” their job would not have contracted silicosis.
Many of these examples are specifically enumerated within the Workers’ Compensation Act. However, COVID-19 has yet to be defined specifically in this category. If evidence in any particular case shows there is a causal relationship between work and contracting the disease (as in the aforementioned examples), the worker can also argue the Illinois state-wide regulations put in place, creates a presumption that the worker was exposed to an increased risk of contracting the disease in the workplace. There are many factors which can be utilized to demonstrate the employee’s workplace increased the worker’s risk to contracting COVID-19. These factors include, but are not limited to, evidence of the employee’s adherence to Governor Pritzker’s stay at home order outside of work; the employee’s status as an essential or front line worker as defined by the stay at home order; other employees having contracted the disease who were working simultaneously with the worker; and an employer’s use or precautions to distancing within the workplace. If these factors exists, along with medical evidence showing a worker has contracted the disease, it could be argued work was a causative factor in the worker’s exposure to the disease and the disease was contracted within the course and scope of his/her employment. If these factors can be proven, it could lead to the classification of COVID-19 as an occupational disease recognized by the Illinois Workers Compensation Commission. But for the employee’s job there could be a rebuttable presumption that the employee contracted COVID-19 within the workplace during the course and scope of employment. In addition, there is no indication as to the long term health risks associated with COVID-19, and therefore, it is essential to assist workers who have been exposed to and contracted the disease.
It is extremely important every worker, who thinks he or she may have been exposed to COVID-19 at work should immediately report the exposure or potential exposure to their employer, and obtain a test to determine if they are positive for the disease. These arguments along with other employees testing positive could become recoverable and compensable as an occupational disease under the Workers’ Compensation Act.
Sherwood Law Group and its attorneys will monitor the law and stand by to advocate these argument on behalf of the Illinois employee and worker. For questions or inquiries regarding COVID-19 and all other occupational diseases, do not hesitate to contact Sherwood Law Group at 312.627.1650 or email@example.com.