Duff: I Hate to Burst Your Bubble

Thursday, May 28, 2020 | 0

The new Illinois workers' compensation COVID-19 presumption is actually three presumptions. The full text of the statutory language is here.

Michael C. Duff

The first two presumptions apply in the case of death and are applicable specifically to “policemen” and “firemen.” Here is my stripped-down rendering:

The death of any [police officer/firefighter] as a result of the exposure to and contraction of COVID-19 [as reliably diagnosed] shall be rebuttably presumed to have been contracted [from work] and the [police officer/firefighter] shall be rebuttably presumed to have been fatally injured while in active service. The presumption applies to exposures sustained between March 9, 2020, and Dec. 31, 2020; but does not apply if the [police officer/firefighter] was not required to work for 14 or more consecutive days prior to contracting COVID-19. The legally operative date of contraction is either the date of diagnosis or the first date of disability from the disease, whichever came first.

The third presumption is an injury/occupational disease presumption applicable to “COVID-19 first responders or frontline workers” (defined 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; and any individuals employed by essential businesses and operations as defined in Executive Order 2020-10).

The list of essential businesses is expansive, so the presumption should apply to many employees. Also, the lawyer in me recognizes that the larger the list of essential businesses, the higher the number of gray areas allowing a business to argue that it is essential, or for an employee to argue that he or she is employed by an essential business.

In any event, the individuals are covered by the presumption if they are “required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees.” An employee’s home or place of residence is not a place of employment, except for home care workers.

How does the injury/occupation disease presumption work? Here is my distillation:

If the employee [is disabled by COVID-19] the [disability] is rebuttably presumed to have arisen out of and in the course of employment, and the injury or occupational disease is rebuttably presumed to be causally connected to the hazards or exposures of the employee's “first responder or frontline worker employment.”

The presumption may be rebutted by evidence, including, but not limited to, the following:

• (A) The employee was working from his or her home, or on leave from his or her employment ... for a period of 14 or more consecutive days immediately prior to the employee’s [COVID-19-related disability].
• (B) The employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability industry-specific workplace sanitation, social distancing, and health and safety practices based on updated guidance issued by the Centers for Disease Control and Prevention or Illinois Department of Public Health or was using a combination of administrative controls, engineering controls or personal protective equipment to reduce the transmission of COVID-19 to all employees for at least 14 consecutive days prior to the employee's [COVID-19 related disability].
• (C) The employee was exposed to COVID-19 by an alternate source.

The rebuttable presumption applies to cases tried after the effective date of the legislation and in which the disease diagnosis was made between March 9, 2020, and Dec. 31, 2020. The disease must be reliably diagnosed, and the presumption created in this subsection does not apply if the employee’s place of employment was solely the employee's home or residence for 14 or more consecutive days immediately prior to the employee’s onset of COVID-19 disability.

The most important thing to realize about the rebuttal criteria above (in their own right a hot mess of ambiguity) — and doubtless a reason why Illinois presumption advocates could “live with” them — is that they are no more than permissible inferences. Once any causation presumption is set up, it is to be anticipated that employers/carriers would offer precisely this kind of evidence to rebut it.

Here the presumption may be rebutted by A, B and C. Of course, it may not be, according to the weight afforded the evidence by a fact finder. In other words, operatively these exemplars of rebuttal appear to do very little because they are merely permissive. They do not (as they might have) operate to burst the bubble of the presumption.

Under that “Thayer-Wigmore” model, once any of the A-B-C criteria were established, the presumption of causation might have “burst,” returning the claimant to the position of having to affirmatively prove causation (see here at page 7). That is not at all my reading of these "rebuttals."

If the proponents of the presumption offered these “A-B-C rebuttal criteria” as a quid pro quo for the extremely broad swath of employees the presumption covers, I have little doubt who prevailed in that negotiation. In the end, this injury/occupational disease presumption is a rebuttable presumption of causation that is not significantly distinguishable from generic rebuttable presumptions of causation. An employer/carrier is permitted to do what it could always have done under a rebuttable presumption.

Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.