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BREAKING: Proposed Legislation Alert to Benefit First Responders

Written by Brent Eames

May 22, 2020

A variety of bills have been proposed in the Illinois legislature which would attempt to provide additional benefits and protections to first responders and other front line workers who have suffered illnesses and/or injuries as a result of exposure to COVID-19 in the course of their employment. There are currently proposed amendments to the Workers’ Compensation Act, the Public Employee Disability Act, and even the Illinois Pension Code. Current proposed legislation and updates are described below.

The most notable proposed amendment will be an amendment to the Workers’ Compensation Act.  Previously, at the Governor’s urging, the Workers’ Compensation Commission issued an emergency amendment which attempted to create a presumption in favor of awarding work comp benefits to front line workers and first responders who become ill or injured due to COVID-19 in the course of employment. This emergency amendment was met with an enormous backlash by employers and insurance companies, who argued that the Commission had overstepped its legal authority. After the emergency amendment was passed, a lawsuit was filed by the Illinois Manufacturers’ Association and Illinois Retail Merchants Association in Sangamon County seeking an emergency restraining order preventing the new rule from being enforced.  The Judge granted this emergency restraining order, and the Commission responded by withdrawing its emergency amendment.

In their court filings, the argument from the business interests groups seemed to be that any amendment to the Workers’ Compensation Act would need to come from the legislature, as opposed to the Commission. So, we had expected it was only a matter of time before the legislature stepped in to act. That is exactly what has happened with SA#2 to HB2455. The current proposed bill would include first responders, as well as the same list of front line employees as mentioned in the previous emergency amendment. However, this bill modifies the extension to include only front line employees who encounter the public or work alongside 15 employees or more. This modification will address the previous potential issue of including stay-at-home employees, which employers had argued was an unreasonable overreach.

This bill creates a strong rebuttable presumption that any of the covered first responders and front line workers who contract COVID-19 are entitled to workers’ compensation benefits as a result of the illness and/or injuries. Potential benefits provided could be payment of all reasonable and related medical expenses, payment of temporary disability benefits until you are physically able to return to work, and a potentially even an award for permanent impairment caused by the injury or illness.

Although the bill’s reference of a “strong” rebuttable presumption is yet to be defined, it can be assumed that it will be the leading rebuttable presumption. Instead of proof by preponderance of the evidence based on evidence that is “more likely than not to be true”, the bill introduces the standard of review to be clear and convincing evidence. This means that the employer will have to provide evidence that is substantially more probable to be true than not, which is more difficult to meet. Adding to that, the bill includes limits on the types of evidence that is to be provided by the employer in an effort to rebut this presumption. This includes that the employee was working from home, or on leave for 14 days or more prior to exposure of COVID-19. In addition, the employer could argue that it had provided a safe workplace, and that the employee was exposed to the virus by a non-work related source.

There are some limits on this proposed presumption. First of all, an injured worker will be required to provide a confirmed medical diagnosis of COVID-19 or a positive laboratory test in order to qualify. Further, this benefit will only currently be extended to workers who are exposed on or after March 9, 2020 through December 31, 2020.

We will continue to monitor this proposed amendment and will update this blog with information as it becomes available.

In addition to the amendment to the Workers’ Compensation Act, an amendment has been proposed to the Public Employee Disability Act which would potentially extend the 365 days of statutory benefits. The bill provides that if an injured worker’s physical recovery is either directly or indirectly hindered by COVID-19, PEDA benefits could be extended by up to an additional 60 days of full pay. The amendment does note that the employing public entity may require proof as to the cause of the alleged hindering of the recovery.

Lastly, the bill includes a proposed change to the Illinois Pension Code for both police officers and firefightersThis bill would amend Article 5 and Article 6 of the Pension Code by amending sections 5-144, 5-153, 6-140, and 6-150. This would benefit Chicago Police officers and Chicago firefighters by reflecting that any death occurring as a result of COVID-19 would be rebuttably presumed to have been contracted while in performance of an act of duty, which should automatically trigger the death benefits available to these first responders under the statute. This current bill does not cover Article 3 or Article 4 first responders, or County Sheriffs governed by Article 7 (IMRF).

These are extremely important and drastic developments under law, and we will be monitoring the developments very closely. If you have suffered a COVID-19 related illness or injury, please contact Brent Eames for a free consultation and to discuss your rights.

The content of this blog is intended for informational purposes only and does not constitute or establish an attorney-client relationship, nor constitute legal advice. If you wish to discuss any further aspect of the material contained herein, please contact an attorney at Eames Law Group, Ltd.

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