1-14-2020; Thoughts from Dr. David Fletcher and Gene Keefe on Recreational Marijuana and WC Claims; Weird New Illinois Laws for Employers to Know of and more

Synopsis: Dr. David Fletcher and Gene Keefe Provide More Thoughts on Recreational/Medical Marijuana for Risk Managers.

Editor’s comment: Please consider the impact of recreational marijuana  on employer drug testing programs. Dr. Fletcher is a director of SafeWorks Illinois and wanted to share these thoughts and slides for your consideration in managing your workforce.

Several central IL employers are going to stop testing for MJ starting January 1, 2020. The team at SafeWorks is scrambling to get test kits that do not test for Marijuana.

Dr. Fletcher and I don’t feel this is strong advice. Contrary to many so-called “experts” that are advising employers to stop testing for marijuana, informed employers can rest assured that their reasonable drug and alcohol testing programs can remain intact thanks to the passage and signing of the “Recreational Marijuana Workplace Protections Enhanced in Veto Session PA 101-253 (Section 10-50  of the Cannabis Regulation and Tax Act)”.

It is business as usual for employers who have established zero tolerance drug and alcohol policies. They can continue to drug test for marijuana as they feel best and not hire prospective employees who test positive as well as discipline current employees who test positive for marijuana use at work according to the employer’s substance abuse policy.

My worry for all employers across the country is simple—if you don’t drug test and one of your workers who is stoned makes a mistake and hurts lots of people, you may be looking at six-seven-eight-figure damages and, worse, punitive damages. For that reason alone, I join with Dr. Fletcher to tell everyone to dig in and test for marijuana, as part of good business practice.

Dr. Fletcher and I have been doing a lot of reasonable cause supervisor training lately (see below a few slides from SafeWorks and Dr. Fletcher that outline the employer protections). Dr. Fletcher is advocating switching to oral fluid testing for reasonable cause due to the earlier window of detection compared to urine testing. If you want a presentation from the defense team at KCB&A, send a reply.

Hound Labs May Have Developed the Ultimate Marijuana Breathalyzer

Hound Labs is a breath technology company that has developed ultra-sensitive technology for non-invasive breath measurement. Utilizing groundbreaking technology, the Hound® marijuana breathalyzer is the world’s first breathalyzer to rapidly, accurately, and inexpensively measure recent marijuana use and alcohol in a person’s breath. The Hound breathalyzer is intended for law enforcement, employer, and insurance purposes only. Based out of Oakland, CA and founded by a physician, they are hoping to make a big impact on employer testing for marijuana use and impairment.

Take a look at their website: https://houndlabs.com/

Another company with similar results and trying to hit the market hard is Cannabix Technologies—check out their website at http://www.cannabixtechnologies.com/thc-breathalyzer.html

I will continue to report progress to my readers as I learn of it.

Going back to Illinois and managing marijuana use in your workforce

Here are some illustrative slides, created by Dr. Fletcher and the team at SafeWorks.

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

Synopsis: Weird New Illinois Laws for Everyone to be Aware Of.

Editor’s Comment: Whenever a legislature is busy and doesn’t have a two-party system to keep it on track, you are going to get weird laws. Here are some from Illinois.

From the WC industry perspective, the new minimum wage laws are going to change wage loss differential claims in workers’ comp.

Here are some of the new Illinois laws for 2020 that may affect you:

• NOTIFICATION REQUIREMENTS SET FOR ARTIFICIAL INTELLIGENCE/COMPUTERIZED VIDEO INTERVIEWS OF JOB APPLICANTS: There are a number of companies, particularly in the financial sector, that appear to be doing the first interview by computer. If you use computers for interviews, basically, you have explain it and get agreement to do it. Employers who ask applicants for permission to record video interviews and use an artificial intelligence analysis of applicant during recording are covered. Submitted videos shall notify each applicant before the interview that AI may be used to analyze the applicant’s facial expressions and consider the applicant’s fitness for the position. Employers must provide each applicant with an information sheet before the interview explaining how AI works and what characteristics it uses to evaluate applicants. In addition, the applicant must consent to be evaluated by the AI program.

• PERSONAL INFORMATION PROTECTION: This new law provides that where a single data breach affects more than 500 Illinois residents, the breach must be reported to the Illinois Attorney General. Call your insurance broker to confirm you have cyber-coverage for the increased cost.

• LEGALIZATION OF PERSONAL and RECREATIONAL USE OF MARIJUANA: The Cannabis Regulation and Tax Act allows for the recreational use of cannabis by individuals over the age of 21. Illinois citizens may possess up to 30 grams of cannabis and out of state individuals may possess up to 15 grams. You can only buy marijuana at state-licensed dispensaries, and only partake in the privacy of your own home. Landlords can prohibit cannabis use in their properties, and employers can still prohibit its use and drug test employees. Growing marijuana plants is only allowed for medical patients and even then, they can only have five plants. The Act establishes guidelines pertaining to expungement of records for possession of cannabis, taxation on cannabis, including numerous changes and additions to Illinois law.

• HIGHER EDUCATION SAVINGS PROGRAM: Every Illinois child will have a 529 savings account! The State Treasurer shall administer the Illinois Higher Education Savings Program, subject to appropriation, beginning in 2021, which will ensure that a 529 college savings account is automatically opened for every child born in Illinois, with an initial deposit in the amount of $50.

• DEPARTMENT OF LABOR WAGE RECOVERY FROM EMPLOYERS: Restaurant employers beware—this new law provides that gratuities are the property of employees and that employers shall pay gratuities to employees within 13 days after the end of the pay period during which the gratuities were earned.

• INCREASE IN MINIMUM WAGE: The minimum wage will go up and then up again. Beginning Jan. 1, 2020, minimum wage will jump from $8.25 to $9.25 statewide, with the minimum wage for tipped workers and employees under 18 (only those working part-time) increasing proportionally as well. Then in July, it will increase again to $10, then $11 beginning on Jan. 1, 2021. It will keep climbing until it reaches $15 per hour beginning on Jan. 1, 2025. Each employer with 50 or fewer full-time equivalent employees may claim a credit against payments as set out in the new law.

• WORKPLACE TRANSPARENCY ACT: On June 2, the General Assembly, through bipartisan efforts, passed SB 75, which created three new laws and amended others that relate to sexual harassment and discrimination. On Aug. 9, Gov. J.B. Pritzker signed SB 75, Public Act 101-0221, into law, comprehensively re-shaping the landscape of sexual harassment and discrimination law in Illinois. The new law not only prohibits unilateral agreements to arbitrate claims involving discrimination, harassment, and retaliation for complaining about discrimination or harassment, but also changes sexual harassment reporting and training requirements and impacts how union representation is handled during the course of proceedings related to claims of sexual harassment.

• BATHROOM SIGNAGE: “Whichever”… Every single-occupancy restroom in a place of public accommodation shall be identified as “restroom” and not indicate a specific gender.

• BABY CHANGING FACILITY IN PUBLIC BUILDING: Requires that there be at least one baby diaper changing station in women’s and men’s public bathroom, contained within a public building. Signage must be visible.

• GENDER DESIGNATIONS ON STATE DOCUMENTS: Authorizes the Secretary of State to permit applicants for identification documents to choose between “male,” “female,” or “non-binary” when designating the applicant’s sex on identification card and driver’s license application forms.

• CONSTRUCTION ZONE PENALTY: Drivers who fail to obey any official traffic-control device shall be fined no less than $100 and no more than $1,000. Penalties for violation of the requirement to use caution in approaching or entering a highway construction or maintenance area or zone increase from a maximum fine of $10,000 to a maximum fine of $25,000.

• SCOTT’S LAW UPDATES: Scott’s Law requires drivers to change lanes, slow down and proceed with caution in approaching emergency vehicles or disabled cars on the side of the highway. Further requires a motorist who is not able to change lanes to reduce speed and leave a safe distance between them and the stationary vehicles. Penalties for first offense are increased from $100 to $250 and second offense from $750 to $10,000.

• DRIVERS BEING ADVISED TO USE THE “ZIPPER MERGE METHOD”: The “zipper merge” method of merging occurs when vehicles run in parallel until one lane physically narrows. The vehicles traveling in the open lane should allow the vehicles in the closing lane to enter the open lane on an alternate car basis.

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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.

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

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.

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

12-24-2019; Great Godfrey!! There Has to Be a Limit--One Shooting Results in 450+ PTSD Claims!!; EOB's For IL WC Are Coming and more

Synopsis: Great Godfrey!! There Has to Be a Limit--One Shooting Results in More Than 450 PTSD Claims!!

Editor’s comment: Six city workers were physically injured but more than 450 city workers have filed workers' compensation claims for PTSD following a mass shooting at Virginia Beach city offices in May 2019 that left 12 dead.

This shocking number of new and difficult-to-manage PTSD claims demonstrates to me how challenging PTSD claims may be for anyone to control. Please also note my view that this phenomenon is going to spike and spiral the cost of work comp coverage for post-traumatic stress claims.

In my view, one concern with PTSD claims comes as a consequence of how U.S. federal, state and local government employees work… they work to some extent as a “unit.” Across the country, legislatures are seeking “presumptive” coverage of PTSD for what are called “first responders.” As I have reported in the past, in an emergency someone has to handle/manage injured folks and also deal with or properly remove dead bodies. What some gov’t workers who can be called “first responders” seemingly want is to do the tough jobs they were hired to do, but then file PTSD claims and get paid by taxpayers for the rest of their lives. As fast as things get easier for “first responders” to get WC benefits, liberals across the country want to expand “first responders” to “any-responders.”

The current Virginia Beach mayor joins with all workers to claim the trauma extends beyond those who witnessed the incident firsthand. Mayor Dyer is quoted to say “A great many more were traumatized, including city employees, family members, chaplains, first responders and people who deliver emergency medical services by ambulance, by helicopter.”

What is happening is the City of Virginia Beach will quickly blow through their primary insurance layer and their skyrocketing number of new WC claims will move to the excess carrier. Sleepy Virginia Beach may now have the highest WC costs for any city in Virginia history! Trust me, that is going to mean dramatically increased excess insurance costs, particularly for municipalities around the country.

The History of PTSD

Called PTSD or “post-traumatic stress disorder” since the Viet Nam War, this condition had a long and interesting history. This stress syndrome has been called many things in the 150 years since it was first recognized as a psychiatric condition but every definition had several characteristics in common, including re-experiencing events, numbing feelings and physiological arousal. The process of Darwinian "natural selection" supported the evolution of people with highly developed stress responses; those pre-historic people with the most effective "fight or flight" reflexes became our ancestors. Curiously, during the 19th Century, what is known today as PTSD was called "Railway Spine" and was associated with what we would today call "hysterical" physical symptoms - i.e. "anxiety" expressed as bodily complaints - seen in people who had been involved in railway accidents but who suffered no bodily injuries.

My Focus for the WC Defense Industry Across the U.S.

Please remember my background and training is defense but there is no getting around PTSD in many situations—it is how to deal with the problem, not whether we can and should deal with it. Even the strongest defense view still needs to leave room for someone (or two) who might be shocked by a truly striking event.

That said, I assure you many municipal/government workers (in particular) are poised to try to take advantage of the PTSD concept to get paid and full benefits not to work. If we are going to be looking at many hundreds of workers for each unfortunate occurrence, we may have a PTSD “epidemic.” Please note a lifetime PTSD claim for most IL government workers could cost literally tens of millions of dollars. There is a lot at stake in reining in this phenomenon.

As you read this, I am betting Illinois government union officials will have secret/quiet/online “instructional guides” on how to maximize PTSD claims.

Again, my PTSD psych concerns are to

• Ensure the diagnosis for PTSD is scientifically founded—serious and shocking we understand but we can’t have literally hundreds of such claims for every rapid and transient government occurrence.

• Make treatment for PTSD have a beginning, middle and end to get the worker to MMI and then

• Evaluate “permanency” or impairment from the event.

Great Experts for PTSD Claims in Illinois

It is important to locate IME experts/consultants who understand concerns about care and evaluation of PTSD claimants in the workers’ comp arena. Here is my vote for two:

Dr. Mark Mosk – Based in Highland Park, IL

After more than 30 years as a practicing forensic and clinical psychologist serving the worker’s compensation community, he has evaluated and treated hundreds of patients referred for suspected PTSD. Dr. Mosk confirms this is a complex type of stress related condition that presents with many different variations such that no two patients’ presenting symptoms, functional impacts, causes, and courses of treatment are alike. This is because two individuals never perceive an allegedly traumatic event in the same way, nor do they harbor the same preexisting coping skills to modulate their cognitive, emotional and physiological reactions to the purported trauma. Thus, the nature and possible causes of the alleged disorder, as well any necessary intervention tactics, are unique to each claim.

In his experience, a key to mitigating both the adverse clinical impact on a patient suffering from PTSD and to minimize the risk associated with managing a PTSD claim is to ensure the claimant undergoes a comprehensive evaluation as soon as possible following the actual traumatic exposure. Delay of this process greatly increases the likelihood the clinical condition will intensify and require more robust intervention. Similarly, Dr. Mosk found two proactive strategies for averting a mass traumatic event from evolving into multiple cases of PTSD to be particularly helpful. The first is to provide employees with advance preparation training to self-manage should such an event occur, and the second is to provide  onsite social support and cognitive behavior therapy based counseling immediately following exposure to a workplace trauma, which can help workers develop resilience to deal with the cognitive, psychological and physical symptoms often associated with such exposure. Dr. Mosk’s website with contact information is www.drmosk.com

Dr. Nausheen Din – Based in Barrington and Chicago

Dr. Nausheen Din, MD is a physician specializing in psychiatry. She is committed to assessing and treating patients with complex psychiatric and behavioral disorders including PTSD, depression, suicidality, bipolar disorder, OCD, generalized anxiety, social phobia, substance abuse, eating disorders, ADHD/ADD and autism. Treatment modalities offered include consultation, risk assessment, psychotropic medication management, individual and group psychotherapy, psychological testing and rTMS therapy. Dr. Din has been in private practice for close to fifteen years and maintains a multisystemic outlook in treating patients. She emphasizes the importance of a bio-psychosocial formulation, so that the treatment plan attends to all facets including psychiatric pathology, educational, athletic, interpersonal, social, familial and concurrent medical illness. If you want contact information, send me a reply, please.

If you have any other recommended PTSD experts in central and southern Illinois, send the contact information. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: EOB’s for IL WC Medical Care Are Coming At the IL WC Industry.

Editor’s comment: IL WC Proposed Rules Detail New Explanation of Denial(s) on Medical Bills.

The Illinois Workers' Compensation Commission is reminding all participants it has proposed a new rule that specifies how an IL WC insurer must send a complete explanation when work comp medical bills are denied.

The new proposed rule, required by the new law in Senate Bill 904, adopted in 2018, was published in the Illinois Register in September, and is available at this link: EOB Proposed Rule.

The rules, when enacted, will require all IL WC insurers or self-injured employers to send a form EOB or explanation of benefits that contains

• Claim adjustment reason codes;

• Remittance advice remark codes;

• Reject codes from the National Council for Prescription Drug Programs; and

• “All information necessary to match the explanation of benefits with the associated medical bill.”

Employers, payers and health care providers may exchange data for medical bills and explanation of benefits in a nonprescribed format by mutual agreement, the new proposed Rule says.

This is a seminal change in IL WC claims handling. I assure you it is happening and you won’t be able to avoid it. If you need help with implementation, send me a reply. I will continue to monitor and report progress.

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

The Basics of Workers' Compensation - What's Changed for Illinois

January 21, 2020 | 10:30 am - 12:00 pm | Webinar

Join Shawn Biery from Keefe, Campbell, Biery & Associates for a webinar which will cover the basics of workers’ compensation claims in IL. You will learn the ins and outs of managing workplace injury claims, litigated or not. From investigation to setting claim targets, to closing claims efficiently, this 90 minute webinar will guide your business toward favorable outcomes from every workers’ compensation claim. We will also highlight some of the recent trends and current potential changes to the system so you won’t want to miss out on your chance to get ahead of the pack.

Register Here