Workers’ Compensation Injuries Caused by Alcohol or Drug Use
HB 5697 Sponsored by Rep. Mike Zalewski (D-Chicago)
SUPPORT
Overview: “More than 70 percent of substance abusers hold jobs; one worker in four, ages 18 to 34, used drugs in the past year; and one worker in three knows of drug sales in the workplace.
Americans consume 60 percent of the world’s production of illegal drugs: 23 million use marijuana at least four times a week; 18 million abuse alcohol; 6 million regularly use cocaine; and 2 million use heroin.
In the workplace, the problems of these substance abusers become problems for employers and co-worker safety. They increase risk of accident, lower productivity, raise insurance costs, and reduce profits.” (source: American Council for Drug Education website)
Twenty-seven of states have acted to combat drug and alcohol abuse in the workplace by reducing or eliminating workers’ compensation benefits for workers who injure themselves due to abuse of alcohol or drugs. Three states have a “hard” forfeiture and allow the denial or reduction of workers’ compensation with a positive drug or alcohol test, or a refusal to test. In the majority of states, the law creates a defense to the action if intoxication is proven, and the intoxication “caused”, “resulted in”, or “proximately caused” the accident; or the accident was “due to” intoxication.
Many of the states allow denial of compensation upon intoxication by “illegal” drugs; “controlled substances not prescribed by a physician” or the like. Impairment due to prescription medication is therefore excepted from the denial. Insofar as the state law may be limited to “controlled substances”, this may not include marijuana intoxication, since marijuana may not be defined as a controlled substance.
The effect of the causation requirement is best illustrated by two examples. In the first, an employee is lifting a forty pound piece part out of a tub, in a normal manner such as all other employees do, and injures his shoulder. He takes a post accident test and is found to have a blood alcohol level of 0.24. In this case compensation will be awarded; while the test is clearly indicative of intoxication, the intoxication did not cause the accident. In the second, an employee is driving a forklift at an excessive speed, turns wide, and crashes into a rack, spilling its’ contents onto him resulting in injury. The post accident test shows the same 0.24 BAC. In this case the employer stands a much better chance of proving not only the intoxication but that the intoxication caused the accident.
Illinois case law provides that an injured employee’s intoxication will bar recovery under the Act if the intoxication is the sole cause of the accident or is so excessive that it constitutes a departure from employment. (Parro v. Industrial Commission)
What HB 5697 does:
- Compensation is not payable if the injury was caused primarily by the intoxication of the employee, or if the injury was caused by the influence of alcohol or any narcotic drugs, barbiturates, or other stimulants not prescribed by a physician, or by the combined influence of alcohol and any other drug or drugs that affected the employee to such an extent that the Commission determines that the intoxication constituted a departure from employment.
- Evidence of the concentration of alcohol or a drug or combination in a person’s blood or breath at the time alleged, as determined by analysis of the person’s blood, urine, breath, or other bodily substance, is admissible in any hearing to determine compensability by the Workers’ Compensation Commission. If the employee refuses to submit to such analysis, it is presumed, in the absence of substantial evidence to the contrary, that the accident was caused by the intoxication of the employee.
- If there was at the time of the injury 0.08% or more by weight of alcohol in the employee’s blood or breath or there is any amount of a drug, substance or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, or an intoxicating compound listed in the Use of Intoxicating Compounds Act, it is presumed, in the absence of substantial evidence to the contrary, that the injury was caused by the intoxication of the employee.
- Percentage by weight of alcohol in the blood shall be based upon grams of alcohol per 100 milliliters of blood. Percentage by weight of alcohol in the breath shall be based upon grams of alcohol per 210 liters of breath.
Courtesy of Jay Dee Shattuck
