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Ill. COVID-19 workers’ comp controversy shows potential concern for ‘essential’ businesses nationwide

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Illinois has repealed a workers’ compensation presumption that any employee of an “Essential Business” — such as an auto body shop — found with COVID-19 would have been presumed to have contracted it on the job.

The saga of the Illinois Workers Compensation Commission order — which appears to have been supported by Democratic Gov. J.B. Pritzker — indicates the need for repairers in other states to watch for sweeping workers’ comp decisions dedicated to “essential” employers.

“This makes it extremely difficult for employers to defend against claims,” the Illinois Retail Merchants’ Association noted of their state’s decision prior to the repeal.

The Society of Collision Repair Specialists and other associations representing essential auto maintenance, service and repair businesses on April 28 urged the National Governors Association, Council of State Governments, National Association of Insurance Commissioners and National Conference of State Legislatures to treat businesses fairly during efforts to “streamline” workers comp.

The trade groups asked the officials to “make clear that any factors used for streamlining, such as an employee testing positive for COVID-19, must include recognition of the fact that there is currently no way to determine exactly when or where anyone has contracted COVID-19.”

They also asked to exclude COVID-19 from employer experience rates, which compare the number of claims at one business to others in the same industry.

Otherwise, you could run into a situation where employees of a shop diligent in cleaning, disinfecting and PPE contract COVID-19 through contact with less diligent essential businesses (such as the grocery store) or family members. With no way to tell where they developed the disease, the employees file for workers’ comp claims (after all, the employee spends at least half their waking hours on the job). The state’s desire to streamline the process automatically assumes the virus came from the essential workplace. The shop looks like a riskier employer and gets slapped with new expenses even though it in reality bears no blame.

“Our member companies strive to enforce CDC employer guidelines for COVID-19 and provide all available personal protective equipment to employees for their safety as well as customer safety,” SCRS, AASP, ASA and other automotive trade groups wrote. “These employers are also taking every measure available to keep their businesses functioning and maintain payroll even when not enough consumer patronage exists to do so by conventional standards. At this point, we have no way of knowing if our members will return to normal capacity after stay-home orders
are lifted or whether even that would be enough to keep them running through the end of the year. For all of these reasons, from lack of scientific basis for assignment of causation to likely inability to pay, we also urge you to urge state agencies managing aspects of workers compensation programs to exclude COVID-19 claims from employer experience rates.

“We thank you in advance for your attention to this crucial matter and hope to work with you and your state agencies to create holistic solutions to these kinds of issues as they arise.”

Illinois order

The Illinois Retail Merchants’ Association called the initial April 13 decision by the Illinois Workers Compensation Commission a “surprise move” and warned of the employer’s difficulty defending COVID-19 claims. The commission amended this April 16 to expand the number of industries affected. Both were to apply to collision repairers and other businesses deemed essential by Pritzker. (The Commission said the April 13 rule change was never actually filed.)

“In any proceeding before the Commission in which the petitioner is a COVID-19 First Responder or Front-Line Worker as defined in Section (a)(2), if the petitioner’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus during the Gubernatorial Disaster Proclamation 2020-38 and any subsequent COVID-19 disaster proclamations, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner’s COVID-19 First Responder or Front-Line Worker employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment,” the April 16 order states.

It defines COVID-19 First Responder or Front-Line Worker to include crucial personnel identified under Section 1 Parts 7, 8, 9, 10, 11, and 12 of Executive Order 2020-10 dated March 20, 2020.” Section 12 of the order defines as “Essential” any “Gas stations and businesses needed for transportation. Gas stations and auto-supply, auto-repair, and related facilities and bicycle shops and related facilities.”

Gov. J.B. Pritzker appeared to tout the new proposal April 13.

“We owe them a debt that we can never fully repay,” Pritzker said of workers offering “critical services.” But the state could give comfort that “they will be covered if they fall ill on the job.”

He said he asked the commission to “protect these heroes,” and the body did so.

The IRMA and the Illinois Manufacturers’ Association sued the commission over the order and obtained a temporary restraining order April 23. The IRMA reported April 27 that the commission repealed the order and would form a committee to study the issue.

The commission on Wednesday confirmed it had voted unanimously to repeal the April 16 order and return to the status quo. It said this rendered the restraining order moot.

“Retailers and manufacturers are concerned about the health and safety of their employees, customers, and communities,” IRMA CEO Rob Karr and IMA CEO Mark Denzler said in a joint statement. “This case was first and foremost about the rule of law and we appreciate the court ruling in Sangamon County and subsequent repeal of the emergency rule by the Illinois Workers’ Compensation Commission. It was clearly an overreach and inconsistent with the traditional rule making process. If left unchecked, this rule would have subject Illinois businesses to billions of dollars in added costs at a time when many are struggling to make payroll and retain employees. Our members employ the largest number of workers in Illinois, represent the largest sales tax revenue generator for the state, and contribute the single largest share of the state’s Gross Domestic Product.”

According to a document provided by the IRMA, Workers’ Comp Commission Chairman Michael Brennan wrote April 27 his body would study other possible actions that the Commission may take, in light of the Covid-19 Pandemic and its impact upon the actions of this Commission under the Illinois Workers’ Compensation Act and the Illinois Workers’ Occupational Diseases Act.” Brennan said two commission members would chair the body, which would be “a committee of practitioners to assist in the examination of the problems created by the Covid-19 Pandemic and possible actions that the Commission may take to solve these problems.”

More information:

Workers compensation letter from SCRS and other essential automotive aftermarket providers

Essential Automotive Service Supply Coalition, April 28, 2020

Featured image: A representation of COVID-19 coronavirus. (Rost-9D/iStock)

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