Synopsis: January 2015 is Approaching With *Puff* - Two New Challenges for HR/Safety/Risk Managers.
Editor’s comment: Employers in Illinois may have to review your workplace policies to comply with two laws that go into full effect on January 1, 2015.
The first new law is the Compassionate Use of Medical Cannabis Pilot Program Act or CUMCPPA. This legislation becomes fully effective in early 2015 when sixty state licensed marijuana dispensaries begin full-scale operations. This law takes employers into a new and challenging arena. However, initial legal compliance shouldn’t be too complex to rapidly understand.
The law provides a person suffering from one or more of a specific set of ailments may be certified by a licensed physician as a candidate that may benefit from the use of cannabis. Your worker may present this certification to the Illinois Department of Public Health to register as a “qualified patient.” Once approved by IDPH the worker will receive a “Registry Identification Card.” This card is the crucial or game-changing document and must be presented at a licensed dispensary in order to receive prescribed marijuana. Without the card, the dispensary won’t dispense.
The CUMCPPA specifically addresses an employer’s liability with respect to your workers who are registry cardholders.
1. It is illegal for an Illinois employer to discriminate against someone solely because that person is a registry ID cardholder and marijuana user;
2. That said, no employer will be held liable solely for employing a cardholder;
3. No employer is required to allow the cardholder to use or possess cannabis on the premises of the business during working hours—as we have advised our readers, we recommend starting a “no marijuana here” drug policy.
4. Employers may discipline or discharge an employee if he or she shows objective signs of impairment from the use of cannabis.
5. If the employer has a “good faith” belief a registered cardholder used or possessed cannabis at work or violated work rules for impairment on the job, there is supposedly no liability for disciplining/discharging the individual.
In our view, the only way to figure this out is going to be expensive litigation. We feel you can and should try to avoid such litigation by the easiest path—barring marijuana from your workplace with a solid drug and alcohol program. If you need a draft policy, send a reply and we will forward our draft policy for your review. Please note one of the toughest things about testing for marijuana is you can prove the person has used it but when they did and how much they used it is much, much tougher. We do feel this new law will also heighten the need for security cameras and footage to demonstrate impairment.
The law further intends to provide Illinois employers should have no liability to a third party who was injured by an employee impaired by cannabis if the employer was not aware of the impairment. We think that provision is almost silly—what is aware? How aware? The only way to figure that out is more lawyers and lawsuits.
CUMCPPA does not apply to employers whose workers are subject to annual random drug testing under U.S. Department of Transportation regulations. If your company or subsidiaries employ interstate truckers, pilots, flight attendants, airline mechanics, limousine or bus drivers your drug testing obligations likely do not change in light of this new law.
This new legislation is a pilot program and has a “sunset” provision that causes it to expire on January 1, 2018, unless renewed by the General Assembly.
The Job Opportunities for Qualified Applicants Act.
The Job Opportunities for Qualified Applicants Act was signed into law in July 2014, and goes into effect on January 1, 2015. This so called “Ban the Box” law is designed to limit an employer’s ability to screen initial job applicants based on criminal convictions. It only applies to employers with fifteen or more employees. The law indicates private employers may not inquire about, consider or require disclosure of an applicant’s history of criminal convictions until the person has:
ü Been determined to be qualified for the applied-for position and has been notified he/she has been selected for an interview; or
ü Has been given a job offer conditional on completion of the screening process.
As odd as it sounds, employers may still deny employment based on a criminal conviction but this law shifts inquires about such information to a later point in the application/interview/hiring process. Please note using a record of arrests or an expunged conviction as a basis not to hire remains prohibited.
From an HR perspective, we recommend:
Ø Review your current initial employment screening documents to see if they ask for information on criminal convictions. If you don’t take that out, you may be sued.
Ø Once the initial eval is completed and you confirm the candidate is qualified, send a notice indicating the next step is your need for more information.
Ø If your company conducts formal background checks, at that point, extend the authorization form to the candidate.
Ø If you make a job offer to any candidate before a background check is completed, advise the candidate your offer is conditional and subject to withdrawal depending on the information later obtained.
Ø If you reject the offer of employment based on a criminal conviction record, you must provide a federally approved “Statement of Rights” to the applicant. If you need a copy, send a reply.
To comply with state law and EEOC regulations, notify all candidate any criminal conviction does not automatically disqualify the person from employment. Confirm you will take into account all relevant information, such as the nature of the crime, when it took place and the person’s history of employment since then. Your goal in doing so is to get your candidates to tell the truth.
The defense team at KCB&A is happy to help with implementation and counseling regarding these new laws. If you have questions or concerns, send a reply.
Synopsis: Former IWCC Chairman Latz Left Yesterday, Long Live Ron Rascia, the New Chairman!
Editor’s comment: Your editor first met Ronald Rascia at The John Marshall Law School in the fall of 1976. He was a great law student and is now a great lawyer and administrator. We are certain he is familiar with all the aggressive interests that intersect at the IWCC.
Governor Quinn has appointed Ronald A. Rascia as Acting Chairman, effective today. Chairman Rascia first joined the IL Workers’ Compensation Commission in 2011 as General Counsel, and later added the duties of the Secretary of the Commission. Ron is a past president of the Central States Ass’n of the IAIBC. Effective today, Assistant Secretary Brendan O'Rourke will serve as Acting Secretary.
Chairman Rascia worked for the Illinois Attorney General for nine years as a supervising attorney in the General Law Bureau, where he defended State agencies in state and federal courts. As an attorney in the private sector, he served as General Counsel to Northwestern Golf Company and Platinum Financial Group.
Chairman Rascia earned a BA in Economics from DePaul, and both a JD and LLM in Intellectual Property from John Marshall Law School.
Former Chairman Michael Latz resigned yesterday November 30th. Both sides of the IL WC Bar are sad to see him move on but we are sure he will do very well.
Synopsis: The Functional Capacity Evaluator or FCE-Can It Be a Claims Mistake? Analysis by Guest Commentator Joe Castronovo, PT, DPT, MTC from Illinois Bone And Joint Institute, LLC.
Editor’s comment: In a recent article entitled How WC Adjustors Can “Smoke” A WC Claim Long Before Defense/Legal is Involved, it was suggested that an FCE could create further problems in defending a case. As a seasoned physical therapist and a veteran of over 500 FCEs, I concur with this notion. My work as an expert witness has allowed me to see first-hand how a subpar FCE can incorrectly label a capable human being. In essence, this injustice who can cast a fishing pole and launch a boat, results in a decision of total/permanent disability and a lifelong pension for a capable individual. However, the proper FCE can be beneficial to all parties. So when should a client be referred to a FCE?
First, an FCE is needed to determine a person’s ability to work safely. However, all WC injuries need not be referred for an FCE. I agree with the article that the physical therapist’s notes throughout therapy and work conditioning are generally sufficient to determine a person’s work ability. However, there are several additional factors to consider. The longer a person has been off work, the more likely it is that they will need a FCE to determine current function due to “deconditioned syndrome.” Also, when a person has highly specific or heavy job demands, then the ability for them to work safely may be difficult to determine with therapy interventions alone. A “good” FCE should have components in place within the test that help determine a person’s lifting capacity prior to actually lifting. Through detailed computerized testing of strength and lifting capacity, a skilled clinician can predict what a patient should lift and not be injured. A therapist may not be able to do this during regular therapy treatments.
The second reason a person should be referred for an FCE is to determine malingering and sub-maximal efforts. Keep in mind conscious sub-maximal effort and the presences of non-organic signs are two different presentations. I have witnessed people not give maximum effort but they were not inventing or exaggerating symptoms. On another hand, I have seen fabricated symptoms in conjunction with the patient putting forth good effort. It may depend on the way they were coached or how the person feels they should behave during the test. Sub-maximal effort can be measured scientifically and may be conscious but could be subconscious due to pain, fear, or anxiety. Malingering, symptom exaggeration, or non-organic signs require knowledge on the part of the patient and are more of an art form to detect. Yet, non-organic signs can also be measured objectively. It makes for an interesting test when a patient is both malingering and putting forth sub-maximal effort. A FCE that determines sub-maximal effort needs to be based on scientific evidence instead of subjective reports or observations alone. A patient who is coached to act disabled is not a match for the experienced clinician who has compiled scientific evidence to support their results that conscious sub-maximal effort was given.
Finally, along with medical records, testimony, disability ratings, and the addition of impairment ratings, a scientific FCE is useful information at the IL WC Commission or Indiana WC Board. When IRs were first introduced, the lecture circuit preached, “Impairment does not equal disability.” Therefore, the impairment rating alone will not decide disability. Disability is a physical impairment that limits life functions. An amicable FCE determines the exact disabilities and abilities that a person can perform for work duties along with validity of effort that reinforces the other medical evidence.
When looking for a “good” FCE, one should ask the following questions.
v How many validity criteria does your FCE present? I have seen FCEs with less than 10 FCE validity criteria while others have 60-100 validity criteria. Which drug would you trust more, consistency over 100 patient trials or 1000?
v Is your FCE supported by scientific evidence and has the report (and therapist) held up in legal proceedings? Computer based FCEs that are calibrated regularly help support the scientific evidence.
v How experienced is your therapist? How many tests has he or she performed? I have seen therapists who took a weekend course and are thrown into the fire and some therapists may only perform a couple of tests a year. It takes time and practice to become confident with administering FCEs. An experienced therapist will be able to detect someone who is coached to be disabled.
v Is the tester a physical or occupational therapist, or someone with a different degree that may not be fully qualified to perform the exam?
v The therapist performing the test should never be the treating provider. In my opinion the same company or even the same clinic should not cause an issue, but once a therapeutic relationship exists, a bias exists.
v Does the report make a clear judgment on the person’s work ability compared to the worker’s actual job demands? Do not pay for general functional descriptions that are left open for interpretation.
v The WC Community becomes frustrated when a physician determines work ability or MMI based on an invalid FCE. The failed FCE should contain a clear statement similar to, “due to the patient’s sub-maximal effort on today’s test, the test results are not a true indicator of the patient’s current work ability. The patient can perform at higher physical demand levels that are represented in today’s test results.”
If your FCE reports are showing that the patient is working significantly at a lower level than the work conditioning or physical therapy reports, there is something wrong with your tester. The search for an experienced FCE tester and company that provides a strong FCE is worth the effort. An FCE report should never smoke a case but help decide a fair settlement for the defendant or the plaintiff.
We appreciate the writer’s perspective and hard work in creating this article. We are happy to forward comments or thoughts to him.
Synopsis: Sharpline Allocations, Our Favorite U.S. MSA Provider.
Editor’s comment: One of the great vendors in Vegas last week is the team from Sharpline Allocations. Sharpline Allocations is a customer service and relationship driven provider of Medicare Compliance and Settlement Planning services. At Sharpline, they understand each client’s unique needs, and deliver customized services that allow the claims professional to have complete certainty that each claim is in full compliance with Medicare Secondary Payer regulations.
The main differentiator between Sharpline and their competitors is great service and their hands on approach. They not only make recommendations, but provide assistance and follow up on with adjusters, risk managers, nurse case managers, Plaintiff/Defense counsel and other vendors to follow through on suggestions to reduce exposure and the potentially high cost of an MSA. They stay with the MSA until settlement, as opposed to moving on from the MSA once completed.
They are also piloting a new MSA Intervention program with one of their National accounts that has significant exposure at this time. The idea is that as soon as a Medicare eligible claimant reaches MMI, the file is referred to Sharpline for early intervention/bird’s eye view of any issues and to make recommendations to prep the claim for future settlement with closure of medical rights, and dramatically reduce MSA exposure by that time. This will potentially reduce the future MSA exposure and reserves. It will also drive claim costs down as the client will be able to settle and get the claim closed faster, rather than waiting to address issues at the time of MSA.
They can discuss this concept further if you are interested or to address any questions/ concerns. If you want more information, go to their great website at http://www.sharplineallocations.com/