Illinois To Deny Workers Comp to Those Who Fail Drug and Alcohol Testing

Illinois has decided to make Workers Compensation benefits more difficult for those who may be inebriated on the job. The state has passed the "Presumptive Denial Law." Which means if you test positive for drugs or alcohol you are denied your workers compensation benefits. The State's Governor is expected to sign this legislation, which would take effect September 1st.

According to the new statute, it must be demonstrated that intoxication is indeed the "proximate cause" of the worker's injuries or that the employee was "so intoxicated at the time of the injury that the intoxication was a departure from employment."

The new law will maintain that any employee testing positive for alcohol in excess of 0.08 BAC or for any other unauthorized drug use will be presumed intoxicated and that intoxication will be presumed to be the proximate cause of the injuries. No workers comp benefits.

Drug and alcohol testing must be conducted according to the National Labor Relations Board or Department of Transportation guidelines. If the employee refuses to take the test, he is presumed guilty of being inebriated on the job. The employee has the right to appeal. If he has a prescription for the drugs that may have caused the inebriation, then he must present it in his defense. He can try to demonstrate that being inebriated alone was not the sole cause of the injury.

Some might find this a bit draconian. I don't. If a worker is inebriated on the job and hurts himself then why, exactly, should he be accorded workers compensation benefit? As one who, years ago, was head of marketing for an investigative firm who specialized in workers compensation investigations for the County of Los Angeles and various private corporate entities, there is no end to the scams employees had created in order to gain workers comp benefits. Being stoned or drunk on the job shouldn't be among them.

Among other presentation tools, our investigation group used to run sub-rosa "highlight" segments of various employees on workers comp. Here the poor souls who couldn't raise their arms above their shoulders, bend over, pick up anything that weighed more than a couple of pounds, were carrying sofas, lifting trees, having a merry time on the insurer's dime. Our concealed camera tapings of them drinking or smoking pot were not, let's say, exotic rarities in our video footage.

I believe Illinois is doing the smart thing by denying workers compensation benefits to the chronically inebriated who claim to be hurt on their job. Personal responsibility has to start somewhere. Even in a world where everyone gets a trophy, someone has to be accountable. More states should adopt this policy.

Comment by Keith Plesha on June 8, 2011 at 10:49am: My issue is not so much with other illegal drugs as it is with marijuana. The problem I have with this is that yes chromatography is extremely powerful and accurate these days as to being able to identify when a person has last used, how often, and how heavy. The data can be extrapolated out...specifically for marijuana smokers. The problem I have with this legislation is that say your employee gets hurt on the job and tests positive for marijuana. You know for a fact that the company is going to claim that the accident was because the person was high. In reality, you would have had to have smoked within an hour or two of that accident for it to be truly considered as the "proximate cause" yet your company will fight you tooth and nail to not pay the claim.

The problem I have with your comment Valentino is that you don't discriminate between user and abuser. I'm an alcohol user, but I'm absolutely not a constant abuser (maybe 1 night a week I'll go a little overboard). I don't drink more than 2 drinks during the week otherwise. So your saying to me that there aren't responsible drug users? Everyone who uses drugs - legal or illegal - doesn't automatically just abuse it. You make it seem that everyone who uses takes it to the extreme and uses everyday which is incredibly far from reality.

Comment by Valentino Martinez on June 8, 2011 at 11:29am: Gordon,

(REVISED)

Thanks for the alert on this important legislation. It's about time and it should be nationalized.

I've commented on "Drug Testing" in other forums, e.g., LinkedIn, and there is always the "defender of the recreational user”--the person who supposedly can party on the weekend and keep their state of inebriation under control during the work week. That's so much BS as you know from your investigative work on the subject. Addiction is a monster that has no time constraints and is equal opportunity dominator of abusers. .

More important than the harm abusers do to themselves is the harm they pose and do to others. Driving drunk or doing shoddy work in jobs that can harm fellow workers and the general public—now includes worker comp fraud. The fact that workers compensation has been scammed by drug & alcohol abusers is appalling.

Employers have an obligation to their employees, customers, products, services--and bottom-line profit to not put any of those at risk by allowing disruption(s) that can and will occur if preventative measures like drug & alcohol testing is not applied at the outset—at the entry gate of employment processing and randomly for retention screening.

In Drug & Alcohol Abuse Testing it’s really not a matter of Pros or Cons or presumed guilt—it’s a matter of positioning for quality outcomes rather than hoping for them. I happened to work in the aerospace and defense industries, in the early 1980s. These were among the first industries to institute mandatory drug testing. It was astounding how many drug testing failures were recorded initially across all disciplines in those early days. It was scary to know that those who failed our drug tests went on to work for our competitors who had yet to establish drug testing programs. Quality and safety have been enhanced on many levels thanks to Drug Testing policies first established in the aerospace and defense industries nationwide.

With this new legislation against workers comp fraud in the State of Illinois—new cost savings will be only one result. I’m unaware of how the private sector deals with similar situations, but if corporate America is not already applying this “denial” method—they should be applying it. Once in place I envision new statistics that will pinpoint how many denials are recorded; and which jobs/industries/geographies seem to harbor the majority of scam artists. In turn, those stats may give other States/employers ammunition to justify installing similar preventative measures against drug & alcohol abusers who also try to leverage workers comp claims.

Comment by Valentino Martinez on June 8, 2011 at 12:02pm: @Keith,

The test discriminates between whether a person is inebriated or is not inebriated. So its value is identifying the inebriated regardless of what drug, drink or smoke got them there—they’re BUSTED. I could care less about how you party as long as no harm is done—to yourself or/and others. The fact that you admit that you occasionally "go a little overboard" is the gateway classic statement made by so many individuals who went overboard just enough to attract law enforcement. What is a little overboard by the way? Enough to get you arrested? Do you carry a breathilizer or some meter that can tell you, you're "a little overboard"?

The problem with your “Everyone who uses drugs - legal or illegal - doesn't automatically just abuse it.”, is flawed because so many actually do abuse it. I can google up so many variations of stats that show not everyone but plenty are abusing and paying the price for that abuse:

Try: http://www.cssfirm.com/2011/03/17/prescription-drugs-more-dangerous...

Prescription Drugs More Dangerous than Illicit Drugs, Alcohol and Firearms

Drug-Related Injuries

According to Drug Abuse Warning Network (DAWN), 2008 saw more than 118 million emergency room visits in the U.S. DAWN’s analysis of emergency room records shows that more than 4.3 million (4,383,494) visits stemmed from some form of drug use, whether related to medicine, drug abuse or drug misuse. This number is up over a staggering 70 percent from 2004[1]. The increase applied to all types of drug-related emergency room visits including injuries from prescription medications.

Adverse Reactions to Drugs

Of those 4,383,494 drug-related visits, 1,999,861 resulted from drug misuse or abuse. The remaining 2,383,633 came from legal medical use of prescription and over the counter drugs. These statistics show the staggering number of drug injuries occurring in the United States. Alcohol related emergency room visits were 656,892. Although statistics are not available for emergency room visits from firearms in 2008, the country saw 69,863 emergency room visits in 2007.
Rather than dredge out more stats specific to any legal or illegal this or that—suffice it to say there is harm in going overboard. Can you agree with that? And that preventative measures are meant to prevent such overboarding in the workplace. Can you see the value in taking such measures, or are you stuck on trusting everyone’s capacity to control themselves when stats show that a growing number of proud self-controllers failed or will soon be failing the test?

Comment by Sandra McCartt on June 8, 2011 at 1:56pm: Keith,

While i agree with you that there are responsible alcohol users and perhaps responsible Mary Jane users. It only takes once when you are over the line to the abuse side. Most of us have probably been there at some time or another and we were just damn lucky that we didn't have a wreck, hit someone or get stopped.

The stories abound about the one time slip up that cost sombody their life, job, license or made somebody else cry. I just placed a CPA who has his license on probation for a year because he watching the basketball game with some friends, had some beers and ran a stop sign on the way home.

DWI .08 when he blew. Is he an abuser, a drunk an alcoholic. Nope it was just one night and a few beers too many. So if you abuse one night a week stay home when you do it. As he put it, "it was a wake up call for me, i knew i was a little bit tipsy and i swear i didn't see that stop sign but if there had been another car in the intersection i might have killed myself or some little kid."

All that being said, what Gordon is talking about here is an on the job accident where the use or abuse is close proximity to the accident. I believe those drug tests are ordered immediately when there is an accident. My take is that use on the job or immediately before is abuse because there is no justification for a toke at lunch or a beer or a martini particularly when the employee is working in an environment where any impairment can potentially cause harm to himself or anyone else.

Comment by Keith Plesha on June 8, 2011 at 4:28pm: I don't disagree with this rule in general, but you are all failing to see my specific point. Just because there is a testable drug in your system doesn't mean it is effecting you. So my point is that you may be testing someone directly after an accident, but, unless you deal with very advanced chromatography, you have no idea when they took said drug and therefore can't reasonably say that the accident was caused by such. Alcohol is different since you can immediately test if the person is under the influence...marijuana and other drugs you cannot as readily identify. The problem is that when you are tested (at the time of the accident) you will show a positive result, which will clearly be used as the "proximate cause". More times than not this will identify someone who is indeed under the influence and should not be, but there are many circumstances (specifically with marijuana users) where it will be used against them even though there is absolutely no correlation between accident and drug usage other than testing positive. Also note that for a regular smoker of marijuana, you will test positive for up to a month after the last time you used. Another thing to note is it is very typical to make an individual take a drug test after a workplace accident...In at-will states, they will most likely be fired immediately regardless.

Comment by Valentino Martinez on June 8, 2011 at 5:32pm: @Keith,

We actually see your point and it's weak. Dancing on the edge of sobriety is no way to assure your employer you can be depended on for the next big project or assignment that requires 100% attention, sustained effort and responsiveness.
But you want a pass for marijuana users because they are smart enough to not to abuse marijuana and therefore deserve a special ID bearing their mug shot (with smile); results of their last sobriety test result; and their "I know my Limits" certificate from the SLUGGO School of "We pass you for anything under the sun" school of get-higher learning.

Comment by Sandra McCartt on June 8, 2011 at 5:44pm: My information from my diagnostic lab clients is that a blood test of the normal variety to test for drugs can determine the amount of THC in the blood stream that would indicate if someone were under the influence or reasonably if it had been ingested or smoked within a time period relevant to an accident. A positive for marijuana can be detected for many months after use with a hair test even though no THC will show up in a blood test. Unless someone shaves all body parts and removes their fingernails and toenails. Marijuana shows up in fingernail clippings also long after somebody said, "ere".

The problem is in an accident situation can the person prove that they were not effected by it if the blood test shows THC in the blood stream. Then you get into medical expert testimony based on the amount of THC, the individual make up of the person and on and on.

But as you indicate, if the company has a 0 tolerance. The employee passed a drug test for purposes of employment then his baseline of negative is when he went to work so any trace of an illegal drug in his system after start date is grounds for immediate dismisal accident or not. Many a soul has packed their box and departed after a random drug test.

Keyword where marijuana is concerned. The last time i looked it was still considered an illegal drug in the U. S. so if it's there in any trace in a workplace accident the recreational toker is toast both as to the accident and Workers Comp and also out of a job in most cases. The argument for or against the level of effect is moot if the THC level is there in the blood test. Most testing after an accident is much more through than just a simple urine sample both on the part of the company risk management group and workers comp from what i have heard from the lawyers and the lab folks.

Comment by Gordon Basichis on June 8, 2011 at 5:58pm: Sandra, you are correct. There is the base threshold for any drug, including THC, and then the reports will show advanced increments of the drug. To digress, as we arrange for our clients to go for drug tests, we had one instance where the candidate tested for something like 1,500 times past the threshold for cocaine in the system. She claimed it was a legitimate drug mimicking cocaine. Yeah, sure. Of course we marveled that she was ambulatory and hadn't fallen over dead.

Comment by Sandra McCartt on June 8, 2011 at 11:19pm: I had one go for the drug test for a job in a medical lab. She tested positive for valium had no script for it and the story was that she was so nervous about the drug test that a friend gave her a valium to calm her down. They walk among us and they breed and vote not to mention do stuff that makes them nervous about the drug test in the first place. One valium might not have been the end of the world but anybody that goddamn stupid has no business working in any kind of medical facilty.

Comment by Sandra McCartt on June 8, 2011 at 11:46pm: Basic waste of oxygen.

Workers Comp refused to those who fail drug and alcohol test = Taking responsibility for your own actions.

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