1-31-2023; First Covid-19 Ruling from IL WC Comm; New IL Laws (with one old one) and more
/Synopsis: The first Covid-19 ruling has been dispatched by the IL WC Commission, affirming the Arbitrator’s finding of work-related exposure.
Editor’s Comment: Nearly three years into the Covid-19 pandemic, the IWCC has considered and now published the first litigated IL OccDisease Covid-19 claim. In Lucero v. Focal Point, LLC, 20WC018985, 22IWCC0231, the Commission affirmed the Arbitrator’s finding of occupational workplace exposure, ruling Petitioner’s Covid-19 infection/illness arose out of employment. We note the ruling was correctly classified as an Occupational Disease Act case vs. a Workers’ Compensation Act matter; a relatively minor, but proper distinction.
Petitioner worked as a machine operator for an aluminum and steel fabricator, testing positive in April 2020. The alleged exposure date is within the timeframe of the rebuttable presumption under Section 19(g) for workplace exposure during the current Governor’s Executive Order 2020-10 for “essential workers”. The COVID-19 rebuttable presumption provides any employee developing occupational disease resulting from an exposure to COVID-19, the exposure and contraction shall be rebuttably presumed to have arisen out of and in the course of the employee’s employment. This presumption creates a prima facie case that the exposure arose out of and in the course of the employment. Left unrebutted and uncontested, the worker is entitled to benefits. However, employers may rebut the presumption via three avenues:
Demonstrating that it complied with recommended CDC or Illinois Public Health guidelines in the 14 days prior to the diagnosis (including sanitation, masks, other protective gear, barriers, social distancing, etc.)
Presenting evidence claimant contracted the virus elsewhere; or
Demonstrating the claimant worked solely from home or was off work at the employer’s facility in the 14 days prior to the Covid-19 diagnosis.
In our view, this Respondent offered fairly substantial evidence to adequately rebut the presumption of exposure under the first item above. The Arbitrator actually commended Respondent’s efforts, which included hand-washing stations, masks, limited in-person meeting attendance, contact tracing, as well as a significant financial commitment to Covie-19 response and safety. In fact, defense evidence was sufficient to compel the Arbitrator to find Respondent to have successfully rebutted the presumption of work-place exposure. However, this is not an automatic “win” for Respondent… the successful rebuttal of the presumed workplace exposure simply returns the burden of proof to Petitioner and the Arbitrator weighs the totality of evidence, as would be considered in any claim.
While Respondent implemented several protections for workplace safety, it was noted that a number of these measures were taken after Petitioner was already infected. There was also no evidence to suggest an exposure occurred outside of work. Notably, at least one co-worker confirmed to be infected before Petitioner, who would have been in relatively close contact with that worker each day.
In our view, this may be (and continue to be) the most persuasive element for Commission consideration in these claims. Absent evidence of direct exposure outside of work (e.g., evidence that a family member was positive just before the claimant), we believe it will continue to be challenging to defend an IL Covid-19 claim where direct evidence exists of co-worker infection just prior to claimant’s illness.
Covid-19 claims are certainly a challenge for IL Respondents, particularly for claims made during the rebuttable presumption period. The rebuttable presumption will apply to all cases in which the diagnosis of COVID-19 was made on or after March 9, 2020, and on or before June 30, 2021 when Exec. Order 2020-10 expired. Regardless of when the claim of infection is asserted, a thorough investigation is critical to the defense of the claim, just as with any work injury or exposure alleged. In addition to demonstrating safety protocols at the workplace, an employer’s ability to demonstrate the absence of any other positive Covid-19 employees may be the key to establishing a sufficient defense worthy of denial. Absent the evidence of other co-workers’ infection(s) prior to Petitioner, the Arbitrator may have had a much more difficult time finding sufficient basis to award benefits in this case. The Covid-19 positive co-workers may often prove the “smoking gun” triggering an award. Therefore, a thorough investigation is key.
This article was researched and written by John P. Campbell, Jr., partner at Keefe, Campbell, Biery & Associates, LLC. We appreciate your thoughts and comments, please post them on our award-winning blog at www.keefe-law.com/blog.
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Synopsis: “When Congress is in Session, no one is safe” -Mark Twain
Editor’s Comment: A series of new (and one old) Illinois laws went into effect on January 1st 2023. These new and fully enacted IL laws address workplace issues and employers in this State should be aware of each:
Time Off for Miscarriage (SB 3120)
Permits women who have a miscarriage, still birth, or other adverse diagnosis affecting pregnancy or fertility to use up to 10 days of unpaid leave.
Safer Food Prep (HB209)
Latex gloves are now banned for use in handling and preparing food, as well as for emergency responders like paramedics, reducing risk of reaction for people with latex allergies.
Crown Act (SB 3616)
This new addition to the Illinois Human Rights Act is intended to address hair discrimination in the workplace. We are not making this one up folks. In our view, this one is really pushing the boundaries of what should qualify as a “protected right”.
This law prohibits discrimination/adverse employment decisions based on hair texture and protective hairstyles like braids, locks and twists. Perhaps well-intended, but in our view, this law exemplifies the micro-management tendencies of the very liberal IL State Legislature over employers which have a cumulative suffocating effect on Illinois business. We will be sure to watch and report on the first IL. Department of Human Rights case litigated over a bad haircut…
Family Bereavement Leave Act (“FBLA”)
This new went into effect on January 1, 2023. It broadens the scope of the Child Bereavement Leave Act by covering additional family members and reasons for leave. The FBLA requires that covered employers (i.e., employers with 50 or more employees during 20 or more workweeks in the current or previous calendar year) provide up to 10 workdays of unpaid leave to eligible employees who are absent due to any of the following: (1) a miscarriage; (2) an unsuccessful intrauterine insemination or assisted reproductive technology procedure; (3) a failed adoption; (4) an adoption match that is not finalized because it was not contested; (5) a failed surrogacy agreement; (6) a diagnosis that negatively impacts pregnancy or fertility; or (7) a stillbirth.
The FBLA also requires employers to provide 10 workdays of unpaid leave for employees attending the funeral of, grieving the death of, or making arrangements due to the death of a “covered family member.” Under the FBLA, a “covered family member” includes children, stepchildren, spouses, domestic partners, siblings, parents, parents-in-law, grandchildren, grandparents, and stepparents.
An employer may require the employee provide documentation supporting the leave request, but the employer cannot require that the employee identify which category of leave they are requesting to take under the FBLA.
To be eligible for leave under the FBLA, an employee must have 1) been employed by the employer for at least one year; 2) worked at least 1,250 hours for the employer during the prior 12-month period; and 3) worked at a worksite with at least 50 employees within a 75-mile radius.
IL Sexual Harassment Prevention Training Program
Since 2020, all Illinois employers are required to do an annual Sexual Harassment Prevention Training program. Enforcement rules/requirements are various and sundry.
If you aren’t doing this, bad things may happen in your workplace. If you need help with this program, send a reply.