As the world continues to slog through the COVID-19 (Coronavirus) pandemic, it is impossible to escape the phrase “essential worker.” We hear the phrase peppered into news reports and conversations so frequently that it has become a received truth – that is, something we largely accept without stopping and thinking critically about its meaning. But what precisely does “essential worker” mean, and to whom does it apply?
A Google search for “essential worker” retrieves results in the millions, so there is no quick and easy way to definitively navigate the boggy question of who an essential worker is. Fortunately for Illinoisans, Governor J.B. Pritzker’s Executive Order 2020-10, issued in March 2020 at the beginning of the pandemic, helps provide some clarity. Section 12 of the Executive Order defines “Essential Businesses and Operations” as healthcare and public health operations, human services operations, essential government functions, essential infrastructure, and a swathe of other businesses, including – but not limited to – grocery stores, pharmacies, food and beverage production, animal shelters, charities and social services, newspapers, radio stations, gas stations, financial institutions, hardware stores, building and construction trades, mail and delivery services, laundry services, restaurants, transportation, day cares, residential facilities, and a litany of other entities – the full list is available here.
Defining what an essential worker is more than just an academic exercise – it has real-life consequences for those workers and their families. This is most especially evident with the advent of the “COVID presumption” the General Assembly added to the Illinois Occupational Diseases Act last year and updated last week. This creates a rebuttable presumption that those essential workers covered in the Executive Order who contract COVID-19 did so in the workplace – provided that their work requires them to encounter members of the general public or to work in locations of more than 15 employees 1. For fuller context, in 2020 Governor Pritzker signed into law HB2455, which created this rebuttable presumption; however, this presumption was only applicable to cases in which a diagnosis of COVID-19 was made on or after March 9, 2020 and on or before December 31, 20202. On January 13, 2021, the Illinois General Assembly passed HB4276, which extends this “COVID presumption” to diagnoses through June 30, 2021.
This is a significant development for Illinois workers. This means that those workers covered in Governor Pritzker’s executive order who contract COVID-19 may have a slightly easier time proving that they did so through workplace exposure. Nevertheless, a rebuttable presumption is not a guarantee that a case is going to win, and employers are likely to fight any claim that a case of COVID-19 is the result of workplace exposure.
Beyond this presumption, the definition of “essential worker” is consequential in determining who gets vaccinated when. Under the current vaccination plan, those eligible in Phase 1A include hospital workers, non-hospital healthcare workers, workers in long-term care facilities, workers in other congregate care settings, and patients and residents3. Phase 1B includes those over the age of 65, plus first responders, educational workers – e.g. congregate child care, Pre-K through 12th grade – in addition to workers in food and agriculture, manufacturing, corrections workers and inmates, United States Postal Service workers, public transit workers, grocery store workers, and workers in shelters and adult day cares4.
The key thing to take away from this vaccination plan, and from the thus far sclerotic delivery of the vaccine, is that there are multitudes of workers, essential and otherwise, who will not receive a vaccine in the foreseeable future. In turn, this means that the “herd immunity” we so desperately seek to quell the virus will likely remain elusive for some time. “Herd immunity” refers to indirect protection from a disease that happens when a population is immune either through vaccination or immunity developed through a previous infection5. This requires the vaccination of a substantial portion of the population; for example, herd immunity against measles requires 95% of a population to be vaccinated, and polio requires about 80% vaccination6. Until such point that we can reach such thresholds, the CDC continues to recommend wearing a mask that covers your nose and mouth to protect yourself and others, staying 6 feet away from others outside of your household, avoiding crowds, avoiding poorly ventilated indoor spaces, and washing your hands often7.
While such efforts can ideally help prevent the spread of COVID-19, they are no guarantee – especially with the arrival of new, more virulent strains8. All individuals, but especially those essential workers who remain on the front lines of fighting this virus need to continue to guard their health vigilantly. Essential workers who get sick at work from COVID should also know that they have rights. Katz Friedman is currently representing many injured individuals who contracted COVID-19 at work and will continue to investigate claims being made by injured workers whether their injury is from lifting, slipping, falling, or contracting COVID-19. When making decisions regarding work-related COVID-19, it is wise to consult a workers’ compensation attorney to protect your interests because it is clear that many employers already have their lawyers working to try and defeat your claim. If you or someone you know became sick at work from COVID-19, the attorneys and staff of Katz Friedman are here to help with obtaining proper compensation.