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Illinois commission repeals sweeping COVID comp order

Posted On: Apr. 27, 2020 12:10 PM CST


The Illinois Workers Compensation Commission unanimously voted Monday morning to repeal an emergency rule that would have allowed most workers in the state who contract COVID-19 to seek coverage for the virus under workers compensation. However, with more states passing coronavirus workers comp expansion legislation or enacting expansion orders, some experts say this is not the end of comp expansion for the state.

The commission’s emergency amendment, issued April 13, revises the state’s Workers Occupational Diseases Act to provide workers compensation protections for workers who are exposed to or contract the virus by creating a rebuttable presumption. The order extended beyond first responders and health care workers who in many states are presumed to have acquired coronavirus on the job to include everyone from grocery and pharmacy workers to hotel and funeral service employees.

The Illinois Manufacturers Association and Illinois Retail Merchants Association filed a lawsuit  Wednesday against the commission and its chairman, Michael Brennan, arguing that the chairman and commission exceeded their statutory authority by enacting substantive changes through a rule change, rather than through the legislative process.

Judge John Madonia of the Sangamon County Circuit Court issued a temporary restraining order Thursday, preventing the workers compensation expansion from taking effect.

During the commission meeting, held via conference call, Mr. Brennan made a motion to repeal the emergency order due to the “uncertainty and expense of litigation.”

“We know that the litigation will be costly and it’s a cost that we quite frankly cannot afford today,” he said. “We also cannot afford to have this up in the air for an extended period of time. Upon the repeal of the rule, we go back to the status quo …”

The swift repeal of the emergency order came as a surprise, said Rich Lenkov, capital member and head of the workers compensation practice at Bryce Downey & Lenkov LLC in Chicago, but he expects an executive order providing similar workers compensation protections to be made via executive order by Gov. Jay Pritzker.

The governors of Minnesota and Kentucky issued executive orders to expand workers comp protections for some frontline workers.

“Obviously, the governor has a pretty wide range of powers during a state of emergency,” Mr. Lenkov said. “What I’m telling my clients is this is not the end; I’m expecting an executive order imminently.”

More insurance and workers compensation news on the coronavirus crisis here.