1-6-2020; Marijuana Now Legal In Illinois--What Do Employers Do?; Gene Keefe's Thoughts That Illinois Has a LOT of WC Administrators and more

Synopsis: Marijuana Now Legal in Illinois—What Do Employers Do?

Editor’s comment: Marijuana became legal in Illinois last week. Illinois employers face a brave, new world on what to do about marijuana in the workplace. Crain’s Chicago Business reported the State of Illinois raked in $3.2M the first day of marijuana sales, guaranteeing the worst run State in the United States is going to latch on to this cash cow and milk it for all its worth, regardless of the dangers and costs to employers and local governments.

Drug/Alcohol Testing and Policies are Important But So Is Common Sense

The biggest concern for employers is to send out a clear signal your workers can’t be impaired and work for you. There is no job that is truly “safe” for the worker, their co-workers and the public if someone is intoxicated/impaired in your workplace. Things can get ugly very rapidly, if you don’t clamp down. You have to send a message that your work sites have to be drug and alcohol-free at all times—if you don’t do so, you will subject your organization to stratospheric liability for all sort of damages including punitive damages.

My common sense theory on controlling marijuana and all intoxicants in your workforce is simple and based in common sense. A couple of years ago, I had some mail room employees who were “huffing” during work. The process of “huffing” is intoxicative inhaling, sometimes using pressurized gas, to get a moderate high. It was very easy to note the workers were doing this and they were a menace to themselves and those around them due to their moderate state of intoxication. Several staff members alerted me to the situation and I sat down with these stoner workers and laid down the law—I told them I wouldn’t stand for intoxication in our law office and they were warned in writing not to do it again. As sure as shooting, they did it again and I documented it and fired all of them. Please remember documentation is your best protection against EPLI or employment practices claims.

From my perspective, all Illinois employers have to have a razor focus about any worker using marijuana or being impaired from marijuana in the workplace. Please note there aren’t really “tests” for huffing. You would have to know what the workers were using to test for it and I assure you the workers weren’t telling anyone and were hiding the inhalants. I was not focused on blood/intoxicant levels—my goal was to avoid anyone who was impaired from endangering the rest of us.

Similarly, you can’t yet scientifically “test” for marijuana, like you can for alcohol. Marijuana testing will basically allow you to know if the worker used or was around marijuana within the last 30 days. There is no chemical test that, by itself, is scientifically significant in demonstrating marijuana impairment levels. If you feel urine or saliva testing for marijuana will have an impact on keeping your workers away from this intoxicant in your workplace, then by all means test. But my advice is to make sure all your workers are keenly aware you aren’t going to tolerate any level of impairment and will follow your personnel policies, leading to termination.

As part of my recommendations, take a look at https://www.workrights.org/nwi_drugTesting_impairmentTesting.html. They seem to be a fairly liberal group but I feel they did a solid study on various approaches to workplace impairment testing of all kinds and they don’t pick one of them. They do include urine testing as part of their studies. Their focus parallels my recommendation for all Illinois employers:

Impairment testing is the practice of determining which workers in safety sensitive positions put themselves and others at risk by directly measuring workers’ current fitness for duty. Urine testing, in contrast, attempts to determine which workers have used specific substances known to cause impairment in the relatively recent past. Experts have long recognized that impairment testing has inherent advantages that make it potentially superior to urine testing as a method of improving workplace safety. This study set out to learn whether impairment testing has lived up to this potential in practice.

Please also note IL House Bill 1438, the Cannabis Regulation and Tax Act, which Gov. J.B. Pritzker signed into law in June, allows employers to institute “reasonable” zero-tolerance drug policies.

Transportation workers are governed by Department of Transportation federal regulations, which strictly forbid levels of THC above 5 nanograms in the blood or above 10 nanograms in saliva or urine. The goal is to have little or no tolerance for workers who can put lots of folks at risk if they are impaired. As I outline above, other impairment inquiries/tests also should have a strong role, depending on how much risk you have in your company.

My law partner Brad Smith confirms the strongest advice he can provide is for all Illinois employers to develop personnel policies that outline your company's lack of tolerance of drug use by all workers at every level. Brad can be reached at bsmith@keefe-law.com for questions, concerns and advice.

There Remains a Statutory WC Presumption Against Injuries When You Can Prove an IL Worker Is Impaired

Please note the IL WC Act still provides a presumption against compensability if a worker can be shown to have suffered injury due to intoxication from marijuana. What I have always told my law students and others—if a worker has a hammer dropped on them and they suffer injury regardless of impairment, accept and pay the claim. If the worker is stoned and starts juggling hammers and sticks their arm with one, the presumption should block compensability. As Brad Smith says—Document, Document, Document to provide strong protection against WC claims arising from impaired workers.

The new law makes Illinois **puff** the 11th state to legalize recreational marijuana, along with Alaska, Washington state, Oregon, Nevada, California, Colorado, Michigan, Vermont, Massachusetts and Maine.

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Synopsis: Yes, Illinois Has a LOT of WC Administrators and Featherbedding in Other State Agencies Across the Board—A Lonely Voice from Gene Keefe.

Editor’s comment: I was quoted last week in Work Comp Central for my reasoned opinion the IL WC system has too many administrators for the ever-dwindling number of claims. To my understanding, the IL WC system has 34 Arbitrators, 9 Commissioners and 18 staff attorneys who provide support for the Commissioners. Along with Chairman Brennan, that makes 62 IL WC administrators, all of whom are making around or more than six figures. In contrast, the Indiana WC system has five, count ‘em, just five hearing officers.

I am not advocating termination of hard-working and professional WC administrators across our State. The IL WC Commission has about seven different “advisory panels” and I suggest several of them take up the topic of trying to match the amount of administrative/legal work to the number of people doing it. I have never seen anyone take up that task and strive for what is called “efficiency” in my forty years of watching this place operate. It is high time someone did so.

Please don’t shoot the messenger. I am trying to let my readers know Illinois remains one of the worst-run and highest debt States in the history of the United States. Every day it is getting worse and taxes are spiraling, driving folks to other places to live and work. At some point, this State is going to be the financial equivalent of the Titanic right after it hit the iceberg—it is certain to fail but it may be hard to tell precisely when that might happen. Unlike Brad Pitt in his acceptance speech last night, I don’t want to have to “share the raft” after Illinois government fails. Our IL State Government wastes money in so many ways it is hard to countenance things like:

• There are 88 IL State Agencies that should be consolidated to about 10 or 15, as other States have done. The 88 Agencies have 88 Agency Heads with 88 Assistants to the Agency Heads and 88 HR managers and 88 Accountants and 88 Logistics, etc. In short, redundant job after redundant job.

• There are 7 Different and Independent IL State Police Departments—what do we need a “Commerce Commission” Police Department for? Can’t all the police operations be consolidated under the IL State Police?

• Along with the 88 State Agencies, the State of Illinois has probably well over a hundred Commissions and Councils and Boards and Authorities—are you starting to notice a trend?-

• We have almost 7,000 taxing bodies in this State, around triple the next highest State for taxing bodies.

Going back to the IWCC and “efficiency,” you may note every single penny of the budget and expenditures of the IWCC are paid for via levies on IL businesses and insurance carriers. The owners of those businesses are facing a staggering income tax increase if our Governor gets his way. Our workers’ comp system, which is dominated by the forces of IL labor get no money from labor. Labor unions have no true “skin in the game” when allowing millions in salaries for our numerous WC administrators.

Right now, I feel I am the only IL WC Commission watcher who has the guts to confirm on simple point—we need to take a hard look at every penny spent on IL State Government if we are going to have an IL State Government that is going to pay its bills in a timely fashion and provide efficient and effective government services to those who remain in this State. I hope the great legislative gurus at the IL State Chamber and Crain’s Chicago Business and every other media outlet starts to listen to my lonely voice on this concept.

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