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Workers' Comp Challenges Develop for Illinois Employers
In recent years Illinois workers' compensation costs had trended very favorably relative to other states. The Oregon Department of Consumer & Business Services biennium workers' comp state comparison had seen Illinois move from th3 8th most expensive state in 2016 to the 22nd in 2018. We anticipate perhaps a slight improvement from 2018 when the 2020 report is issued in the near future.
However, just as Illinois costs for workers' compensation have been coming down in recent years and our costs are more competitive with other states, new challenges from all three branches of state government could reverse the gains in cost savings and premium stability that employers have experienced the past few years.
Illinois Supreme Court Decision moves Illinois closer to a "positional risk" state
The Supreme Court's recent decision in McAllister v. IWCCÂ seems to redefine the context by which everyday activities may be deemed as compensable workplace accidents. In the decision, the Supreme Court reversed the Appellate Court, finding that the action of kneeling and getting up to look for food was for the benefit of the employer, reasonable and foreseeable, and a risk incidental to the employment.
"This case expands the definition of risks distinctly associated with employment to include activities which would typically be considered a neutral risk. Previously, neutral risks (i.e. risks not specifically linked to the employment) were weighed under an analysis of whether the employment created either a qualitative or quantitative risk above that of the general public. However, under the McAllister decision, neutral risk activities such as bending, kneeling and standing can be characterized as risks distinctly associated with employment or "incidental to the employment" if the activity is reasonably foreseeable or done for the benefit of the employer. If the risk is deemed incidental to employment, there is no need to consider whether the activity is of a greater degree or frequency than that experienced by the general public in an activity of daily living."(from: John Fassola, Power & Cronin, 9/25/20 email)
The Illinois Chamber is concerned that this decision may now create compensability for innocuous activities such as reaching or bending for an object that previously since the enactment of the Workers' Compensation Act were not compensable. This could be a tremendous cost driver for future Illinois workers' compensation claims.
General Assembly Likely to Revisit COVID Rebuttable Presumption Next Month
When the General Assembly meets next month for its 3 days of scheduled session, on the docket likely will be the revisiting the changes made to the Act adding a rebuttable presumption for workers' contracting COVID-19. The most obvious change is potentially extending the December 31, 2020 sunset of the new provision. Other possible changes could be removing the "ordinary presumption" standard and elimination of the employer TTD credits for paid leave payments made to the worker for COVID-related time off. We will be actively engaged representing employer interests during the Fall Session. For a summary of the COVID rebuttable presumption issues enacted earlier this year contact Jay Shattuck at [email protected]
IWCC Medical Fee Advisory Board to Review Medical Providers' Request for a 30% Increase in Reimbursement for Certain Evaluation & Management Services
During the October 5th meeting of the Illinois Workers' Compensation Commission Medical Fee Advisory Board (MFAB) a motion to increase evaluation and management medical fee reimbursement codes by 30% was offered. A presentation was made in support of the motion by MFAB member Dr. David Fletcher. The MFAB approved a timetable of November 9th to receive additional comments from Board members as well as the public. Consideration of the motion by the MFAB is scheduled for its December 14th meeting. If approved by the MFAB the increase will go to the full Commission for consideration.
The statute provides in Section 8.2 the authority of the Commission to adjust the medical fee schedule if it "finds that there is a significant limitation on access to quality health care in either a specific field of health care services or a specific geographic limitation on access to health care, it may change the Consumer Price Index-U..."
The Council's Workers' Compensation Committee is meeting virtually on October 20th to review and discuss whether there is a lack of access to quality health care" for providers seeking reimbursement for E & M services. Based on those discussions, the Council will be submitting comments to the MFAB on behalf of the Illinois Chamber.
Get updated on these key issues and others by registering for our 14th Annual WC Conference being held the morning of November 4th
The 14th Annual Workers' Compensation & Safety Conference set for November 4th is being held virtual this year. The 8:30 am to noon program features John Ruser, President & CEO of the Workers' Compensation Research Institute (WCRI) and Michael Brennan, Chairman of the Illinois Workers' Compensation Commission.
The program also will include the following breakout sessions:
Advances in the Diagnosis and Treatment of Carpal Tunnel Syndrome - Presented by Dr. Andrew Zelby and Dave Rusch, Vice President of Business Service Development, Ovation Hand Institute;
Medical Marijuana in the Workplace - Presented by AJ Sheehan, MVP Law
The Covid-19 Rebuttable Presumption - What is it and What Does it Mean for You? - Presented by Peter Stavropoulos, Brady Connolly and Masuda
2020 Workers Compensation Case Law Update - Presented by Shawn Biery and John Campbell, Keefe Campbell Biery & Associates
Snakes, Leaches, and Tobacco Enemas - The Case for Evidence-Based Medical Treatment Guidelines - Presented by Patrick Robinson, Vice President, Government Affairs, ODG, an MCG Health Company
OSHA Updates for 2020 and Beyond - Presented by Matthew Horn, SmithAmundsen LLC
UI Changes Also Likely for Fall Session
The Senate Unemployment Insurance Working Group has been meeting the past month to discuss potential unemployment insurance issues that need to be addressed since the COVID pandemic. During the meetings, organized labor has indicated that there number 1 priority is to make permanent the benefits for non-educational employees. Those benefits expire December 31, 2020. Also expiring at the end of the year is the one week waiting waiver and the non-charging of employers for benefits paid due to COVID caused layoffs. The Illinois Chamber's primary issue is getting federal support for the Trust Fund deficit. The projected calendar year end 2020 Illinois UI Trust Fund deficit is projected to be $4-5 billion which could grow by as much as three-fold by the end of 2023.
We anticipate the Governor will be calling business and labor together before the end of the year for agreed bill negotiations. The Council's Unemployment Insurance Committee will be meeting on October 21st to discuss our priorities going into the agreed bill negotiations.
We also are hearing that there is another spike in fraudulent debit cards being issued using stolen identities. IDES has information online for consumers to protect themselves in those situations.
Non-compete & Non-solicit Legislative Agreement Close at Hand
Since last February, The Illinois Chamber Employment Law Council has been in negotiations with the National Employment Lawyers Association (NELA) on changes to the Illinois Freedom to Work Act. The proposal generally makes reasonable limitations on covenants not to compete and covenants not to solicit and provides employers greater clarity and certainty as to whether their covenant not to compete or covenant not to solicit will muster judicial scrutiny.
During the 101st General Assembly, six measures (HB 2975, HB 4699, HB 5454, SB 3021, SB 3387, and SB 3430) impacting covenants and arbitration have been introduced. Several measures completely prohibited non-compete agreements. As we considered the Illinois political landscape, we determined it was best for us to test the waters to see if we could achieve a reasonable compromise on covenants not to compete and not to solicit to avoid legislation that seeks to eliminate covenants entirely. We believe the latest draft proposal achieves the balance sought.
From the Illinois Chamber's view, the proposal protects what employers care the most about:
- It helps clarify the law about what is adequate consideration and what is a legitimate business interest sufficient to warrant a non-compete. It will make it easier for an employer to show a legitimate business interest sufficient to support the restriction, and it preserves the ability of a court to judicially modify overly broad covenants.
- The procedural protections for employees (e.g., the 14-day review period and advice to consult with an attorney before signing), will cause courts to be more comfortable about enforcing a covenant and will diminish judicial qualms about whether the employee actually signed the covenant as a matter of free will.
- The statutory fee shifting provision for a prevailing employee is pro-employee, but virtually every noncompete already has a fee shifting provision in favor of the employer only. This proposal will have the effect of leveling the playing field: whichever side wins will be liable for fees. The result will remove the taint of unfairness that surrounds non-compete covenants - again, further alleviating judicial qualms about fairness.
- Finally, the proposal expressly carves out garden leave clauses and certain other types of restrictions from the definition of a covenant not to compete, including "no rehire" provisions in separation agreements, confidentiality agreements, and covenants related to the sale of a business.
The Council's Employment Law & Litigation Committee reviewed the proposal earlier today. We are pushing for its consideration during the Fall Session.
Progressive Tax Issue...How you can help to Defeat it!
One of the more critical issues that Illinois voters will be voting on this fall is whether Illinois should shift its income tax from a flat tax to a progressive tax. Election day is only about two weeks away with early voting already occurring.
The Illinois Chamber of Commerce is working with a statewide coalition of business organizations that is educating voters on the dangers of the progressive tax amendment on this November's ballot. As you know, the progressive tax would especially hurt business owners, who could see their state income taxes rise more than 60% if the amendment passes.
You can read more about our efforts at:
If you are interested in how you can help defeat the progressive tax question, here are a couple of suggestions:
- The centerpiece of our project involves interviewing small business owners to showcase how they would be impacted personally-and how their employees would be impacted-by such a huge tax increase. Right now, the supporters of the tax increase are saying only "the rich" would have to pay more. We know that's not the case, we all will have to pay higher taxes because Springfield politicians will just keep coming for more and more of our hard-earned money. We believe you have a compelling story to tell about how you've built your business, the sacrifices you've made, how you're taken care of your employees like family, and how government has made it harder every step of the way. We'd like to help you tell your story. If you are you willing to get on the phone with our expert storytellers for 10-15 minutes to discuss this in the near future, please contact me as soon as possible. You can view the produced stories on the Facebook site provided above.
2. An action plan for small business owners suggesting a number of ways you can make an impact. Gov. Pritzker has put $50 million into passing this question. We don't need $50 million to defeat it but we do need your help at the grassroots level to get the message out. Contact me if you would like a copy of this plan.
3. Share Coalition social media posts with your employees, family, and friends.
4. Sponsor a presentation to learn more about the progressive tax. The Coalition has trained speakers who are ready, willing and able to educate your employees. Whether it's a lunch-and-learn in an employee lunchroom or a larger digital event with multiple participants, and let us know where the Coalition can help by providing trained speakers.
Please feel free to contact me if you have any questions.
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