No compensation is owed under the Illinois Workers’ Compensation Act if: (i) the employee’s intoxication proximately caused the injury, or (ii) the employee was so intoxicated at the time of the accident that the intoxication was a departure from the employment. Evidence of the concentration of alcohol, cannabis, a controlled substance, or an intoxicating compound in the employee’s blood, breath, or urine at the time the accident can be used as proof that the employee was intoxicated at the time of the employee’s accident. If at the time of the accident there is any evidence of impairment, or if the employee refuses to submit to drug testing, then there shall be a rebuttable presumption that the employee was intoxicated and that the intoxication was the proximate cause of the employee’s injury.
The Illinois drug penalty remains viable, even in the face of the Occupational Safety and Health Administration’s (OSHA) new rule prohibiting blanket drug testing. However, Illinois employers should take care to ensure that their anti-drug policies and drug testing procedures are both sufficient to prove-up a reduction under the Act and consistent with the OSHA rule.
Here are a few factors employers should consider in light of OSHA’s new rules relating to post-accident drug testing:
First, employers should take care to avoid blanket post-accident drug testing. Drug testing policies should indicate that drug testing shall be required in all cases where employee drug use was likely to have contributed to the incident. Employers should also document the reasons for requiring drug testing in a particular case.
Second, employers should require employees to sign the anti-drug policy, as well as a consent to be drug tested. That will allow the employer to prove that it had adopted the anti-drug policy, and that the injured employee was aware of the policy. This will also allow the employer to argue for a forfeiture of benefits in the event the injured employee refuses to take a drug test.
Third, employers’ drug testing policies should require testing that can be used to prove impairment caused by drug use. Employers should consider requiring blood tests rather than urine screens because positive blood test results are better evidence of impairment. Blood samples provide a more accurate measure of the physiologically active drug present in an employee, and that will be more persuasive evidence to prove that no compensation is owed due to the employee’s drug use. Additionally, blood tests will be more consistent with OSHA’s requirement that the testing be used to prove impairment.