10-10-2019; Pancake House Fall-Down Denied; The Other Half of Our Marijuana in the Workplace Presentation and more

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Synopsis: Pancake House Fall Down Denied by IL Appellate Court.

Editor’s comment: In a mildly surprising but legally well-founded ruling, a unanimous ruling from the IL Appellate Court, WC Division considered facts about a worker who suffered somewhat severe injuries prior to getting to work.

In Walker Brothers, Inc. v. Illinois Workers' Compensation Comm'n, (issued September 13, 2019), the IL WC Commission awarded Claimant medical, temporary total disability (TTD), and permanent partial disability (PPD) benefits. Claimant was seriously injured when he had parked his car and was walking, heading to work, and fell on ice in a retail store parking lot not owned nor maintained by his employer.

The worker and other restaurant employees were allowed to park in the other lot because the restaurant parking lot was felt to be too small for customers, vendors and employees. The Appellate Court ruling by Justice Holdridge noted there was no evidence that the employer controlled or maintained the other retail store’s parking lot. The parking lot where the worker fell was not part of a route “going to or coming from” that was required by the employer.

Basically, Claimant was on his way to work but hadn’t gotten close enough to be able to make a valid IL WC claim for his unfortunate injuries. 

Evidence of record indicated the employer had no designated employee parking lot. Further, pursuant to an “informal agreement with” the adjoining store, some employees parked in the parking lot where the fall took place “across the street and down half a block.” However, the employer did not pay the nearby business for use or maintenance of the lot. There was also evidence the employer’s employees were allowed to use only the section of parking spots furthest away from the retailer’s entryway and the Walker Bros. employees do not receive any priority over the retailer’s customers. A rep from the employer explained the employer’s employees have other options for parking, such as side street parking that required no payment or permit, and not all of the employer’s employees parked in the retailer’s parking lot.

For all those reasons, the unanimous Appellate Court reversed the IL WC Commission panel and held the injuries suffered did not arise out of or in course of his employment with the employer. Please note the worker might have been able to bring a common law claim for inadequate maintenance of the lot by its owner.

 

Synopsis: More on Marijuana in Your Workplace from Gene Keefe and Matt Ignoffo.

 

Editor’s comment: This is the other half of our presentation highlights. If you want a presentation/webinar on the topic, send a reply.

 

How to Best Deal With Marijuana in the Workplace—DON’T.

 

  • We have clients across the U.S. asking about the optimal approach to marijuana in their work sites

 

  • We recommend an easy approach to this issue—start now and forever ban marijuana in your workplace

 

  • Make all workers aware you won’t tolerate impaired work activities, as it is dangerous to be impaired at any job, any place.

 

  • All states we are aware of allow you to legally stop the use or impairment from marijuana in your work sites

 

  • If you don’t act before you get a medical marijuana user asking about it and you block that user and then start to ban its use, you are almost certainly looking at a discrimination action

 

Illinois is the Eleventh State to Legalize Marijuana and Our New Law is Clearly Contradictory

 

  • On June 25, 2019, Governor Pritzker signed into effect House Bill 1438—the Cannabis Regulation and Tax Act (“CRTA”).

 

  • The CRTA, which is set to take effect on January 1, 2020, leaves open questions for employers, but there are a few important features with which Illinois employers should quickly become familiar.

 

Prohibitions on Disciplining or Discharging Employees for Off-Duty Consumption—But You Should Be Able to Discipline Impaired Workers

 

  • The CRTA differs from many state laws legalizing recreational marijuana in that it explicitly protects an employee’s right to consume marijuana during off-duty hours. To me, that is just odd.

 

  • By contrast, in some states that have legalized recreational consumption, employers remain free to adopt and enforce policies prohibiting employees from using marijuana both on and off-the-job.

 

Illinois Still Protects Employers and Allows Them to Punish Users Who are Impaired

 

  • The CRTA will amend Illinois’s Right to Privacy in the Workplace Act, which prevents employers from disciplining or discharging employees for using “lawful products off the premises of the employer during nonworking hours.”

 

  • The CRTA will define the previously undefined phrase “lawful products” to mean “products…legal under state law.”

 

  • This is a noteworthy change because marijuana is still illegal at the federal level.

 

  • By defining “lawful products” to mean those products that are legal at a state level, the CRTA appears to prevent employers from disciplining or discharging employees for recreationally using marijuana during off-duty hours. Notably however, federally regulated employers, such as those subject to federal DOT regulation, are carved out from this exemption.

 

Employers May Continue Drug Testing and Prohibit Working Under the Influence

 

  • Under the CRTA, employers retain the ability to adopt and enforce “reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call.”

 

  • The only explicit restrictions on these policies are that employees will not be considered to be “on-call” unless they have had at least 24-hours’ notice, and drug policies must be “applied in a nondiscriminatory manner.”

 

Consider Melding Marijuana Impairment, Testing and Discipline to Opioid Bans

 

  • You and everyone who might ever sit on a jury knows someone using either marijuana or opioids at work is impaired at a relatively significant level

 

  • Under the theory of respondeat superior, employers are typically legally responsible for actions of their workers which they can “reasonably expect” the workers to do

 

  • If your worker smashes into a school bus and injures lots of people and it is found you knew that worker was using marijuana or opioids with your knowledge and permission, the outcome could bankrupt your company

 

Our advice is ban marijuana and opioid use/impairment in your workplace—if you need our policy, let us know.

 

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