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Tips to rebut COVID-19 presumption cases


During the pandemic, many states passed presumption laws that presumed certain workers with COVID-19 had contracted the virus at work, easing the path to obtain workers' compensation benefits. The laws vary significantly by state on which employees are covered, if the presumption is rebuttable, and the methods employers can use to rebut the presumption. There have been many court cases and decisions are just beginning to emerge, which can help provide a roadmap for employers in crafting rebuttable arguments.

Two recent cases in Illinois demonstrate what to do and what not to do when trying to overcome the presumption. Illinois law includes three methods to rebut the presumption: the employee worked from home or was on leave for at least 14 consecutive days immediately before becoming sick; the employer enforced industry-specific workplace sanitation, social distancing, and health and safety practices as defined by the CDC and Illinois Department of Public Health or used administrative controls, engineering controls and/or personal protective equipment to reduce COVID-19's transmission for at least 14 consecutive days before the diagnosis; and the employee was exposed to COVID-19 by an alternate source.

In Edgar Lucero v. Focal Point, the company was designated as an essential business and the employee contracted the virus in April 2020. The company documented the safety measures it had taken to reduce transmission and the arbitrator, while noting the company was likely painting itself in a much more favorable light than was true, found some evidence of both workplace preventative measures and possible alternative sources of infection that was sufficient to rebut the presumption. The company also argued that positivity rates in its workplace were much lower than they were in its zip code; however, it could not produce evidence that the employee was out and about, which reduced the effectiveness of this argument.

Therefore, the compensability decision then shifted to a standard analysis with the burden of proof on the employee. The employee pointed to no known COVID-positive close contacts, ineffective or incomplete preventative measures at the workplace, and the rate of positive cases in the plant overall and the arbitrator awarded benefits.

In the other case, Tonia Dalton v. Saline Care Nursing and Rehabilitation Center, a certified nursing assistant at a long-care facility and her co-worker tested positive in early November 2020. Both testified there was a lack of safety and health practices, including a shortage of soap, ill-fitting gloves, questionable cleaning practices, and issues with PPE while entering the COVID wing. Her co-worker continued to work, despite testing positive, and was not asked to quarantine because of an emergency staffing situation during a COVID outbreak.

The administrative person in charge of developing policies and training presented documentation of the purchase of PPE, but she worked remotely and lacked firsthand knowledge of what occurred at the facility. The arbitrator found the facility failed to present sufficient evidence to rebut the presumption and benefits were awarded.

While employers need not be entirely successful at stopping the spread of the COVID-19 virus to overcome presumption, invariably decisions focus on whether it is more likely than not that the employee contracted COVID-19 at work. Here are six things employers can do to build their case: