4-7-14; When Do You Need to Start Drug/Alcohol Testing?; Understanding IL WC Hearing Loss Claims; Mary McNichols, RIP and much more

Synopsis: When Do You Need To Start To Drug/Alcohol-Test?


Editor’s comment: Okay, readers--is there any other solid HR/Safety approach to dealing with medical marijuana and other legal/semi-legal drugs in the U.S. workplace? We presented for a great audience last week at MacNeal Hospital/Clearing Clinic in Berwyn, IL. The topic everyone is asking about is what is the optimal approach to dealing with the new challenge of medical marijuana in the workplace. Illinois and many states have recently “legalized” the use of this drug; please note the U.S. Government continues to ban the drug but it appears the feds aren’t going to interfere with doctors prescribing it and patients using it. As we all start worrying about medical marijuana due to expectations it will become commonplace for lots of employers, our readers and clients report lots of other strong drugs like Norco and Oxycodone are being regularly used at work too.


Our main concern for you and all HR/Safety/Risk managers will be reacting to medical marijuana for the first time after it hits your workplace. By that we mean, you don’t want to wait for to learn you have one or two folks using it to then respond and start to make changes. While it is possible to do so, if you start to take job action leading to termination against the first medical marijuana user, you are almost certainly going to be discriminating against that worker, exposing your organization to litigation or EEOC/IDHR claims. Trust us, the EEOC or IDHR love to “attack” or penalize employers in a fashion that allows the agencies to herald their successes.


In our view, some employers have moved aggressively to create alcohol and drug-free workplace policies. If you are thinking about going that route, we have a sample drug and alcohol-free program for your consideration and use—if you want a copy, send a reply. In our view, the risk and cost of one impaired individual in your workplace more than justifies the cost of implementing and enforcing the program.


We also feel there are lots and lots of employers who haven’t made the decision to move their organization and work sites to a completely drug and alcohol-free workplace. There are costs and challenges to implement an alcohol and drug-free workplace program. In some industries, you are required by law to implement them but lots of companies are not so constrained. From the viewpoint of component members of the workers compensation community—do insurance carriers/TPA’s, law firms on both sides, nurse case management providers, physicians, hearing officers and others need to start considering a move to become drug and alcohol-free? Those aren’t considered “high-risk” jobs but heightened risks do come from the use of drugs, even in administrative environments.


We feel the next-best question for such employers is how to deal with use of medical marijuana, prescription narcotics, surreptitious use of illegal drugs and a workers-using-someone-else’s prescriptions during work hours on your job site. Our problem with “Plan B” in trying to manage such a workforce is you are looking at liability, liability and more liability. By that we mean, if you don’t drug/alcohol test and let folks closely follow the legislation to openly use medical marijuana while at work, you have several issues that are inescapable. If the worker is allowed to regularly and routinely use medical marijuana, they are arguably impaired as part and parcel of the work they are doing for you. Whether you like medical marijuana or not, such a worker is an increased health and safety risk to themselves, their co-workers and the public at large.


In the legal world, the concept of “respondeat superior” makes U.S. employers arguably responsible for the actions of your workers when they are doing the things you hired them to do. You can also be responsible for some acts if you don’t take reasonable steps to stop bad behaviors by your workers that you are aware of. As an example, you may have heard about the recent situation where a Chicago Transit Authority elevated train driver fell asleep and then smashed the train into an El station at the end of the line and injured around 30 passengers. Please note that accident could cost Chicago taxpayers several million dollars. For example, if the CTA allowed that worker to legally use medical marijuana and part of the reason the driver fell asleep was use of the drug, the CTA might have greatly heightened liability.


We are sure common carriers such as the CTA have lots of rules barring drug and alcohol use by their transit drivers. We salute the Authority for terminating the driver who had two significant safety issues on her record. However, do HR, safety and risk managers understand you now face the same problems for any of your workers who drive any motor vehicle or operate any machinery as part of their work? If your workers are more likely to fall asleep due medical marijuana use and you don’t take action to stop such use, your responsibilities under both workers’ comp and general liability are greatly increased.


So let’s look at some options. As we have advised our readers, there are four main approaches to drug and alcohol testing:


·         Pre-hire;

·         Random;

·         Reasonable cause and

·         Post-accident.


If you are the slightest bit concerned about drug and alcohol use in your workplace, you can do one of the four above or any combination of the above or whatever you feel best. What we don’t think you can or should do is none of the above!


If you are going to test everyone in a pre-hire setting, you are probably going to spend a significant amount of money with a cost per worker of around $50-200 for each person tested. For lots of major employers, that is a significant cost but on the positive side, you are blocking problem workers before they become your problem.


Random drug/alcohol testing can be managed as you feel best—you don’t have to randomly test a large portion or your workers and can limit the sample to control your costs.


Reasonable cause testing is also a controllable method to handle the issue of seeing impaired workers and stopping them from using drugs or alcohol that create concerns for your managers. The problem with limiting drug/alcohol use in this fashion is the concept comes with a higher potential for your company to get sued over the issue of what “reasonable cause” might be; particularly if you are routinely getting negative results but continuing to test.


Post-accident drug/alcohol testing is a solid fall-back position to insure your workers understand if they are injured, you are going to test. It is relatively simple to let your IL WC PPP network or your company clinics know you want everyone reporting an injury to be tested. We hope you don’t have lots and lots of accidents so this approach should be relatively low in cost.


The only approach we don’t agree with is no testing of any kind. We assure you the decision not to test in any fashion at any time will be a very challenging concept for any employer to follow with the heightened use of drugs, alcohol and other intoxicants that have become commonplace in society.


We appreciate your thoughts and comments. Please post them on our award-winning blog.




Synopsis: Understanding Hearing Loss Claims in IL Workers’ Comp.


Editor’s Comment: There are two kinds of hearing loss claims in IL. It is important to understand the nuances of this aspect of such claims.


First is what we call “BOOM” or a sudden, one-time blast/blow-up or a smack to the head/ear. The IL WC Act refers to it as from as arising from “trauma or explosion.”


Such claims are treated like any other accident with injuries. Claims managers need to investigate, seek proper treatment for your worker and get documentation of temporary and permanent hearing loss. We feel such claims could be combined with other injuries—if a worker broke their foot in a loud explosion, you might need to take care of the foot and possibly pay for hearing loss for the explosion. The challenge for the worker is meeting the burden of proof to show their hearing loss is related to the “boom.”


In such a situation, this statutory language applies:


4.         Loss of hearing of one ear-


50 weeks if the accidental injury occurs on or after the effective date of this amendatory Act of the 94th General Assembly but before February 1, 2006.


            54 weeks if the accidental injury occurs on or after February 1, 2006.


            Total and permanent loss of hearing of both ears-


200 weeks if the accidental injury occurs on or after the effective date of this amendatory Act of the 94th General Assembly but before February 1, 2006.


            215 weeks if the accidental injury occurs on or after February 1, 2006.


Second is “repetitive exposure” or more precisely industrial hearing loss. These sorts of claims can become intertwined with OSHA sound requirements in your workplace. To get benefits for industrial loss, the employee has to show exposure to specific levels of loud noise—see below. The baseline is 90 decibels for all 8 hours of a work shift. You don’t typically see that much noise for that long because OSHA may get involved to require hearing protection at appropriate levels.


For that reason, we consider it rare to have an employee exposed to loud or very loud levels for the times indicated. OSHA usually busts employers long before it would apply. If you have any workers who are claiming regular and consistent exposure to 90 decibels or more over an entire day, you need to test and then affirmatively start requiring needed hearing protection for all workers at levels necessary to insure the decibels are under the chart below.


From the IL WC Act:


16. For the permanent partial loss of use of a member or sight of an eye, or hearing of an ear, compensation during that proportion of the number of weeks in the foregoing schedule provided for the loss of such member or sight of an eye, or hearing of an ear, which the partial loss of use thereof bears to the total loss of use of such member, or sight of eye, or hearing of an ear.


             (a) Loss of hearing for compensation purposes shall be confined to the frequencies of 1,000, 2,000 and 3,000 cycles per second. Loss of hearing ability for frequency tones above 3,000 cycles per second are not to be considered as constituting disability for hearing.


             (b) The percent of hearing loss, for purposes of the determination of compensation claims for occupational deafness, shall be calculated as the average in decibels for the thresholds of hearing for the frequencies of 1,000, 2,000 and 3,000 cycles per second. Pure tone air conduction audiometric instruments, approved by nationally recognized authorities in this field, shall be used for measuring hearing loss. If the losses of hearing average 30 decibels or less in the 3 frequencies, such losses of hearing shall not then constitute any compensable hearing disability. If the losses of hearing average 85 decibels or more in the 3 frequencies, then the same shall constitute and be total or 100% compensable hearing loss.


             (c) In measuring hearing impairment, the lowest measured losses in each of the 3 frequencies shall be added together and divided by 3 to determine the average decibel loss. For every decibel of loss exceeding 30 decibels an allowance of 1.82% shall be made up to the maximum of 100% which is reached at 85 decibels.


             (d) If a hearing loss is established to have existed on July 1, 1975 by audiometric testing the employer shall not be liable for the previous loss so established nor shall he be liable for any loss for which compensation has been paid or awarded.


             (e) No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid.


             (f) No claim for loss of hearing due to industrial noise shall be brought against an employer or allowed unless the employee has been exposed for a period of time sufficient to cause permanent impairment to noise levels in excess of the following: 


Sound Level DBA 

Slow Response      Hours Per Day

90                                8

92                                6

95                                4

97                                3

100                              2

102                              1-1/2

105                              1

110                              1/2

115                              1/4


         This subparagraph (f) shall not be applied in cases of hearing loss resulting from trauma or explosion.


Sound equivalents from the web:


* 110 decibels, equivalent to deafening factory noises and some music boxes turned up too loudly..

* 100 decibels, equivalent to a chain saw, pneumatic drill, printing plant, jackhammer, speeding express train, some car horns at five yards, farm tractor, riveting machine, some noisy subways [about 20 feet].

* 90 decibels, equivalent to a police whistle, heavy traffic, noisy home appliances subway-rail train, pneumatic drill or hammer at one meter, rock drill at 100 feet, some motorcycles at 25 feet, shouted conversation.


If you need assistance or consultation on a hearing loss claim, “BOOM,” just send a reply.




Synopsis: Mary McNichols, Rest in Peace.


Editor’s comment: The IL WC community is saddened to hear of the passing of Mary McNichols, J.D. who was a long-time and brilliant workers’ comp lawyer. She lost her battle with an illness  and recently passed in the company of her family. Mary was married to Pat Tallon of Fitz & Tallon, a respected Plaintiff/Petitioner firm.


Mary was the daughter of John J. McNichols, J.D. who was a past president of the Illinois Workers’ Compensation Lawyers Assn.


The attorneys and staff of Keefe, Campbell, Biery & Associates extend our condolences to the family, friends and colleagues of Ms. McNichols.