Illinois Joins the Legalization of Recreational Cannabis Use Trend – Part III: Workers’ Compensation
March 10, 2020
Now that cannabis is legal in Illinois, the question arises as what this means for future workers’ compensation claims. While Parts I & II of our cannabis series covered both a brief overview of the law and employee drug testing, we will now cover how legalization impacts workers’ compensation claims in Illinois.
Section 11 of the Illinois Workers’ Compensation Act, states that no compensation shall be payable (i) if the employee’s intoxication is the proximate cause of the accidental injury or (ii) at the time of the injury, the employee was so intoxicated that the intoxication constituted a departure from the employment. Admissible evidence of the concentration of cannabis in the employee’s blood, breath, or urine at the time of the injury shall be considered to determine whether the employee was intoxicated at the time of injury. If at the time of the accident there is any evidence of impairment due to the use of cannabis, then there shall be a “rebuttable presumption” that the employee was intoxicated and that the intoxication was the proximate cause of the employee’s injury. Recall that in Part II, even though recreational use of cannabis is now legal, employers can still prohibit use at the workplace.
Courts have consistently held that a positive drug test for cannabis is not sufficient to support an intoxication defense. Courts require more to prove impairment, typically in the form of eyewitnesses and proof that the employee’s actions were a departure from employment. The rationale for this is that when it comes to cannabis, a drug test can be positive for days, if not weeks after ingestion of cannabis, unlike alcohol. Under the Illinois Workers’ Compensation Act, there are specific values pertaining to the amount of alcohol in a person’s system (.08% or more) to create the required rebuttable presumption of intoxication. While the Cannabis Act indicates that cannabis should be regulated in a manner similar to alcohol, nothing in the Workers’ Compensation Act addresses the specific values for cannabis to prove impairment. However, the Illinois Vehicle Code notes that when a driver undergoes tests positive for THC concentration of 5 ng/ml or more in the whole blood, or 10 ng/ml or more in other bodily substances (i.e. saliva or urine), then there is a presumption the individual was under the influence of cannabis while driving, but the admissibility of these tests for a WC claim is questionable. Consequently, drug testing with a shorter window for detection (i.e. saliva tests with a 24-48 hour window), may be more useful in defending workers’ compensation claims than other forms of testing, which may confirm THC in the system for 30 or more days beyond intoxication.
Typically, employees can overcome the rebuttable presumption easily, so employers should be ready to provide witness testimony and proof of any deviation from an employee’s duties. Section 10-50 (d) of the Cannabis Act provides examples on how an employer may also consider an employee impaired under the influence of cannabis without the use of a drug test, which we highlighted in Part II of our series. Supervisors should be trained on what to look for in terms of signs of impairment. It is arguable that the more proof of petitioner’s impairment, the stronger the intoxication defense for a workers’ compensation claim.
If you have any questions on this law and the potential impact on workers’ compensation claims, or your business in general, please contact any attorney at Wiedner and McAuliffe by email or phone at 312-855-1105.