As of Friday, May 22nd, the Illinois legislature passed House Bill 2455. Awaiting Governor Pritzker’s signing, HB 2455, among other matters, reinstates the “rebuttable presumption” for essential workers who presumably contracted COVID-19 at work. This is a major piece of legislation that will undoubtedly have a major impact on workers’ compensation claims related to COVID-19.
What is the “rebuttable presumption”?
Suppose you think you caught COVID-19 at work. Before HB 2455, you would have had the initial burden of proving the source of your exposure related to your employment. After HB 2455, however, that you caught the virus at your work becomes a presumption that must be rebutted by your employer. In other words, the “rebuttable presumption” relieves you of having to prove your exposure arose out of or in the course of your employment.
However, employers can shift this evidentiary burden back. By demonstrating that proper protections and practices were established at the workplace at least 14 days prior to the onset of your symptoms or your positive diagnosis, an employer can shift the burden back on you to prove that those protections and/or practices were not appropriate or sufficient. The legal standard of those protections/practices are set by the Federal Center for Disease Control (CDC) or the Illinois Department of Public Health (IDPH).
Alternatively, an employer can rebut the presumption by showing that you had been working from home for 14 or more days before contracting the virus, or else proving that you were exposed by a source outside the workplace.
Who is eligible for the “rebuttable presumption”?
The rebuttable presumption is available to all “COVID-19 first responders or front-line workers.” HB 2455 defines this class of persons as:
“all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all individuals employed and considered as first responders; all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers; corrections officers…”
Included in this class are:
“any individuals employed by essential businesses and operations as defined in Executive Order 2020-10 dated March 20, 2020, as long as individuals employed by essential businesses and operations are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees.”
With reference to Governor Pritzker’s March 20th COVID-19 Executive Order #8, “essential businesses and operations” include stores that sell groceries and medicine; critical trades, such as plumbers, electricians, exterminators, janitors, painters, and more; media; gas stations and businesses necessary for transportation; hardware and supply stores; shipping and delivery services; laundry services; residential facilities and shelters; hotels and motels; funeral services; etc. For a complete list of industries and work related to “essential workers,” see Governor Pritzker’s March 20th COVID-19 Executive Order #8, paragraph 12.
The “rebuttable presumption” is available for infections occurring between March 9 – December 31, 2020.
That’s right: according to the Illinois State Bar Association, the expectation is that, once signed, the HB 2455 would have retroactive effect dating back to March 9, 2020—before CDC and IDPH guidelines were widely followed. This means that even if you’re no longer sick with COVID-19 but you think you were infected while at work sometime after March 9th, you could be due compensation. The availability of the “rebuttable presumption” expires on December 31, 2020, at the end of the year.
If you believe you were exposed to COVID-19 while at work, Grazian & Volpe are here to get you the money you deserve. For a free consultation, call us at 773.838.8100, email us at Attorney@GrazianVolpe.com, or fill out our online form.