Employee Coronavirus Injury Claims Are Different in Indiana and Illinois
This week, the non-profit investigative news organization Fair Warning cautioned workers across the country who have been exposed to the Coronavirus while on the job, in an article entitled “Some Workers Sickened by Covid-19 Face an Extra Burden: Proving Where They Got It,” written by John Hill and published on August 1, 2020.
The August 2020 investigative piece warns workers in Indiana, Illinois, and elsewhere that employees and their families face two major legal hurdles in getting employers to take responsibility for their COVID-19 injuries, with many workers being denied coverage and compensation for Coronavirus medical bills, lost wages, and more.
First, workers must provide evidence to prove they were exposed to COVID-19 on their work site. Second, workers may need to establish that Coronavirus is bodily harm covered by their employer’s state workers’ compensation insurance as a statutorily defined workplace injury.
This is an important message for all workers to receive. However, it is especially important for everyone working in our part of the country, because Coronavirus Worker Injury Claims are not being treated the same in the State of Illinois as in the State of Indiana.
What is Workers’ Compensation Insurance in Indiana and Illinois?
Under the laws of both Illinois and Indiana, there are longstanding legal protections designed to protect workers who have been hurt on the job. We have discussed how these protections apply during the Coronavirus Pandemic before, see:
- Employers’ Duty to Protect Workers during Coronavirus Outbreak;
- Coronavirus on the Job: Proving Employee Exposure Claims Against Employer for COVID-19 Injury; and
- Coronavirus Workers’ Compensation in Illinois: IWCC Forced to Repeal Help to COVID-19 Victims.
In each state, lawmakers have passed workers’ compensation laws to help people who have been hurt or killed on the job. Statutory systems have been created pursuant to this legislation in each state, with employers mandated to pay for workers’ compensation insurance coverage in accordance with state law. For more, read: Workers’ Compensation in Indiana and Illinois: Work-Related Injuries and the Fight against Corporate Greed.
These workers’ protection programs not only cover medical expenses, they also provide the worker and his or her family with payments to cover lost wages when the worker cannot work due to their injuries. Together, statutory protections for workers covering their wages as well as providing medical coverage are called “workers’ compensation benefits.” Each state system is overseen by a state agency, including processing injury claims filed by a worker whose employer participates in either the Illinois or Indiana workers’ compensation systems.
- In Indiana, things are overseen by the Workers’ Compensation Board of Indiana.
- In Illinois, it’s the Illinois Workers’ Compensation Commission.
While Indiana has yet to enact specific legislation designed to help Hoosiers seeking workers’ compensation coverage related to Coronavirus exposure and resulting COVID-19 illnesses, the State of Illinois has followed the trend of other states (such as California, Michigan, and Utah), and passed new laws to help workers get COVID-19 Workers’ Compensation coverage.
This means that workers in Illinois may find it easier to substantiate and establish a workers’ compensation claim based upon COVID-19 than those who are employed in the State of Indiana.
Illinois Workers’ Compensation: COVID-19 Claims
Why the different treatment for workers in our neighboring states? On June 5, 2020, a new Illinois state law went into effect that specifically amends the Workers’ Occupational Diseases Act with respect to claims related to COVID-19.
Now, under Illinois state law there is a “rebuttable presumption that an employee’s contraction of COVID-19 arises out of and in the course of the employee’s first responder or front-line worker employment and that the injury or occupational disease shall be rebuttably presumed to be causally connected to the hazards or exposures of the employee’s first responder or front-line worker employment.”
This new legislation comes in to help Illinois workers after state agency regulations trying to help COVID-19 worker compensation claims were withdrawn after a judicial stay went into effect prohibiting the agency from acting upon it. See: Coronavirus Workers’ Compensation in Illinois: IWCC Forced to Repeal Help to COVID-19 Victims.
What is a rebuttable presumption?
A rebuttable presumption helps the person who has a legal burden to prove the existence of a fact in order to prove their right to damages. Cornell University provides the definition of a rebuttable presumption as being: “[a] particular rule of law that may be inferred from the existence of a given set of facts and that is conclusive absent contrary evidence.”
Accordingly, in Illinois, workers’ compensation claimants may be able to prove their right to workers ‘compensation benefits arising out of their COVID-19 injuries because this new state law states that the courts will assume they caught the Coronavirus while on the job. They do not have to prove with admissible, authenticated evidence where they contracted COVID-19 (unless challenged by the employer).
Who is covered by the Illinois Rebuttable Presumption in COVID-19 Claims?
Of course, this eases the burden for these workers. However, it does not apply to every worker in Illinois. It only applies to first responders and front-line workers, as defined in Illinois law.
Nevertheless, a wide range of industries and lines of work appear to be covered by the new Illinois Rebuttable Presumption for Coronavirus Workers’ Compensation Claims. From the Executive Order signed by Illinois Governor JB Pritzker back in March 2020, Governor Pritzker defines Coronavirus Pandemic “first responder or front-line worker” in the State of Illinois as (emphasis added) “Healthcare and Public Health Operations, Human Services Operations, Essential Governmental Functions, and Essential Infrastructure, and the following:
- Stores that sell groceries and medicine. Grocery stores, pharmacies, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, and other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, alcoholic and non-alcoholic beverages, and any other household consumer products (such as cleaning and personal care products). This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, and also that sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and Essential Businesses and Operations;
- Food, beverage, and cannabis production and agriculture. Food and beverage manufacturing, production, processing, and cultivation, including farming, livestock, fishing, baking, and other production agriculture, including cultivation, marketing, production, and distribution of animals and goods for consumption; licensed medical and adult use cannabis dispensaries and licensed cannabis cultivation centers; and businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, shelters, kennels, and adoption facilities;
- Organizations that provide charitable and social services. Businesses and religious and secular nonprofit organizations, including food banks, when providing food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities;
- Newspapers, television, radio, and other media services;
- Gas stations and businesses needed for transportation. Gas stations and auto-supply, auto-repair, and related facilities and bicycle shops and related facilities;
- Financial institutions. Banks, currency exchanges, consumer lenders, including but not limited, to payday lenders, pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products; Hardware and supply stores. Hardware stores and businesses that sell electrical, plumbing, and heating material;
- Critical trades. Building and Construction Tradesmen and Tradeswomen, and other trades including but not limited to plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses and Operations;
- Mail, post, shipping, logistics, delivery, and pick-up services. Post offices and other businesses that provide shipping and delivery services, and businesses that ship or deliver groceries, food, alcoholic and non-alcoholic beverages, goods or services to end users or through commercial channels;
- Educational institutions. Educational institutions—including public and private pre-K-12 schools, colleges, and universities—for purposes of facilitating distance learning, performing critical research, or performing essential functions, provided that social distancing of six-feet per person is maintained to the greatest extent possible. This Executive Order is consistent with and does not amend or supersede Executive Order 2020-05 (COVID-19 Executive Order No. 3) or Executive Order 2020-06 (COVID-19 Executive Order No. 4) except that affected schools are ordered closed through April 7, 2020;
- Laundry services. Laundromats, dry cleaners, industrial laundry services, and laundry service providers;
- Restaurants for consumption off-premises. Restaurants and other facilities that prepare and serve food, but only for consumption off-premises, through such means as in-house delivery, third-party delivery, drive-through, curbside pick-up, and carry-out. Schools and other entities that typically provide food services to students or members of the public may continue to do so under this Executive Order on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis only. Schools and other entities that provide food services under this exemption shall not permit the food to be eaten at the site where it is provided, or at any other gathering site due to the virus’s propensity to physically impact surfaces and personal property. This Executive Order is consistent with and does not amend or supersede Section 1 of Executive Order 2020-07 (COVID-19 Executive Order No. 5) except that Section 1 is ordered to be extended through April 7, 2020;
- Supplies to work from home. Businesses that sell, manufacture, or supply products needed for people to work from home;
- Supplies for Essential Businesses and Operations. Businesses that sell, manufacture, or supply other Essential Businesses and Operations with the support or materials necessary to operate, including computers, audio and video electronics, household appliances; IT and telecommunication equipment; hardware, paint, flat glass; electrical, plumbing and heating material; sanitary equipment; personal hygiene products; food, food additives, ingredients and components; medical and orthopedic equipment; optics and photography equipment; diagnostics, food and beverages, chemicals, soaps and detergent; and firearm and ammunition suppliers and retailers for purposes of safety and security;
- Airlines, taxis, transportation network providers (such as Uber and Lyft), vehicle rental services, paratransit, and other private, public, and commercial transportation and logistics providers necessary for Essential Activities and other purposes expressly authorized in this Executive Order;
- Home-based care and services. Home-based care for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness, including caregivers such as nannies who may travel to the child’s home to provide care, and other in-home services including meal delivery;
- Residential facilities and shelters. Residential facilities and shelters for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness;
- Professional services. Professional services, such as legal services, accounting services, insurance services, real estate services (including appraisal and title services);
- Day care centers for employees exempted by this Executive Order. Day care centers granted an emergency license pursuant to Title 89, Section 407.400 of the Illinois Administrative Code, governing Emergency Day Care Programs for children of employees exempted by this Executive Order to work as permitted. The licensing requirements for day care homes pursuant to Section 4 of the Child Care Act, 225 ILCS 10/4, are hereby suspended for family homes that receive up to 6 children for the duration of the Gubernatorial Disaster Proclamation.
- Manufacture, distribution, and supply chain for critical products and industries. Manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitization, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, petroleum and fuel, mining, construction, national defense, communications, as well as products used by other Essential Businesses and Operations.
- Critical labor union functions. Labor Union essential activities including the administration of health and welfare funds and personnel checking on the well-being and safety of members providing services in Essential Businesses and Operations – provided that these checks should be done by telephone or remotely where possible.
- Hotels and motels. Hotels and motels, to the extent used for lodging and delivery or carry-out food services.
- Funeral services. Funeral, mortuary, cremation, burial, cemetery, and related services.
Workers’ Compensation Claims for COVID-19 Victims in Illinois and Indiana
Today, a worker exposed to COVID-19 on the job becoming ill and suffering serious harm or perishing due to the Coronavirus may have an easier legal battle to establish workers’ compensation benefits in Illinois than in Indiana. This is because the two states have different and independent legal systems, and Illinois has passed this new legislation to help many of its workers who have become ill with COVID.
However, workers and their families in both states must recognize that employers will continue in their widely-known stance against liability for the Coronavirus. These claims will be vigorously defended in both Indiana and Illinois. Employers in both states, with their defense counsel and insurance carriers, are building legal defenses to avoid liability for workers who are suffering – and those who have died – as a result of COVID-19.
Accordingly, workers in both Illinois and Indiana must know that while there are workers’ compensation laws on the books to protect you, and Illinois has passed new legislation to help employees, the economic realities are that employers are fighting hard to keep their financial responsibilities for hurt workers as low as possible.
Anyone suspecting they have been exposed to COVID-19 on the job in Indiana or Illinois should investigate their legal rights for workers’ compensation benefits based upon Coronavirus injuries, even if employers are fighting hard to avoid taking responsibility for illness on the job site. Please be careful out there!
