Coronavirus (COVID-19) – Compensability Analysis – Illinois Workers Compensation

Question: 

Will Coronavirus cases be considered compensable and covered by the Illinois Workers’ Compensation and Occupational Diseases Acts?  

Answer:

The Illinois Workers’ Compensation and Occupational Diseases Acts are statutes that create a system of benefits for employees that suffer work-related injuries.  In order for an injury to be compensable, an employee must have suffered an accident/exposure which arose out of and in the course of his employment.  Under Illinois law, it is insufficient for an employee to prove that his accident simply occurred at work for the case to be found compensable.  In addition, an employee must prove that the accident was the result of a risk inherent in the workplace.  The accident at work is generally not compensable if the risk of injury is common to the general public. Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill.2d 52, 133 Ill.Dec. 454, 541 N.E.2d 665 (1989). 

The Illinois Occupational Diseases Act states, “The term “occupational disease” means a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment.  Such aggravation shall arise out of a risk peculiar to or increased by the employment and not common to the general public.”  820 ILCS 310/1(d). 

The question is whether the Coronavirus disease if contracted by an employee would be compensable under the Illinois Workers’ Compensation and Occupational Diseases Acts.  The Coronavirus disease (COVID-19) was first detected in Wuhan, China in December 2019.  It is contagious via human to human contact.  

Therefore, this is not an exposure peculiar to an employer or an employer’s workplace.  This is a worldwide health condition/crisis which affects potentially all members of the general public.  This exposure is therefore not unique or specific to any particular employer.  Therefore, as a general rule, we would not expect cases involving the Coronavirus to be compensable in Illinois.  

Certainly, there could be exceptions to this rule.  Traveling employees who are sent to areas of high exposure to the virus could prove a compensable workers’ compensation claim.  See Omron Electronics v. Illinois Workers’ Compensation Commission, 2014 IL App. (1^st) 130766WC, 387 Ill. Dec. 74, 21 N.E.3d 1245 2014 Ill. App. Lexis 793 (2014).

Further, we would anticipate compensable claims involving health care workers in the event they face direct exposure and/or greater exposure to patients with the disease than members of the general public.  However, strict proof of an actual increased risk will be required.  See Spurling v. Industrial Commission, 129 Ill. 2d 416, 135 Ill. Dec. 794, 544 NE 2d 290 (1989).

The more difficult questions will be whether employees who regularly have in person contact with high volumes of the general public will be considered at greater risk than employees who do not generally interact with the general public.  Theoretically, the type of employee that may attempt to raise such a claim could include: retail sales, cashiers, train conductor, restaurant employees, etc.

It is possible that those employees could be covered under workers’ compensation but it is highly unlikely.  Strict proof would be required.  Illinois courts have been reluctant to grant compensability in cases like these and there is nothing in the Illinois statute nor Illinois case law which would encourage either the Commission or Courts to grant compensation except in cases of clear increased risk (i.e. health care professionals).  

Cases involving the Coronavirus would more likely appear to be personal conditions and not work related. Recent medical reports have stated that this particular virus is somewhat more contagious than the average flu in terms of its ability to spread from one person to another.  Further, the number of cases will grow over time, making the exact source of the exposure much more challenging to identify. Thus, the likelihood of a determination that an individual is at increased risk of developing the condition due to exposure to members of  public while working is unlikely. Neither Illinois statutes nor Illinois case law would tend to favor a finding of compensability in these types of cases absent special circumstances or direct proof.  

The Illinois Workers’ Compensation and Occupational Diseases Acts contains a rebuttable presumption of compensability in favor of firefighters, emergency medical technicians and paramedics for certain conditions of ill-being.  In Section 6(f) of the Workers’ Compensation Act, it provides in essence that any condition or impairment of the health of an employee employed as a firefighter, EMT or paramedic which results directly or indirectly from any blood born pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis or cancer resulting in any disability to the employee shall be rebuttably presumed to arise out of and in the course of the employee’s work duties.  This only applies to employees on the job for more than five years.  

This section of the Act may create different potential liability for employers of firefighters, EMTs and paramedics.  Arguably, a Coronavirus infection would be considered to be a respiratory disease or condition for which a rebuttable presumption would be created.  

It is important to reiterate that Illinois is not a positional risk state.  The positional risk doctrine is a principle which holds that an injury arises out of employment if the injured worker's employment required the worker to be at the place where the injury occurred at the time it occurred.  

In order for a claim to be compensable in Illinois, the claimant must show a risk inherent in the employment  rather than simply an injury while at work.  Certainly, cases involving viral conditions which are spread worldwide would not be generally considered unique to the employment in Illinois.  

Certainly, employers would be encouraged to protect their employees and prevent the spread of the disease.  Employers should regularly consult the CDC website for updated information and recommendations.  See www.cdc.gov/coronavirus/2019-nCoV.  The current recommended strategies include: 

1.     Actively encouraging sick employees to stay home; 

2.     Separating sick employees from other employees;

3.     Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees;

4.     Avoid unnecessary physical contact(i.e. handshakes)

5.     Perform routine environmental cleaning;

6.     Advise employees before traveling to take preventative steps. 

In addition to the above precautions, we would make the following recommendations to limit your potential workers’ compensation exposure:

1.     Staff employees based on actual need; 

2.     Allow non essential employees to take voluntary leaves without pay; 

3.     Allow employees to work at home if feasible; 

4.     Consider expanding your actual working hours and then spreading out the employees’ during the expanded working hours; 

5.     Limit the number of employees using elevator at any given time; 

6.     Try to make sure that employees’ workstations are at least six feet apart. 

Provided by the Law Firm of  Rusin & Maciorowski, Ltd
www.rusinlaw.com 

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