With the impending legalization of recreational marijuana in Illinois on January 1, 2020, employers are abuzz about the potential implications on their operations, particularly how legalization impacts alleged work injuries. Under the Illinois Workers’ Compensation Act, employees found intoxicated at the time of an accident are denied compensation if the intoxication was the proximate cause of the injury or if the employee was so intoxicated it constituted a departure from the employment. 820 ILCS 305/11.
The act already considers evidence of intoxication from the use of marijuana. If at the time of the accident there is evidence of intoxication due to the “unlawful or unauthorized” use of marijuana, there is a rebuttable presumption the employee was intoxicated, and the intoxication was the proximate cause of the accident. Id. It then becomes the employee’s burden to prove the intoxication was not the proximate cause of the injury.
Evidentiary issues are likely to present the greatest challenge in marijuana cases. Unlike alcohol, there is no defined “legal limit,” nor is there a straightforward method of measuring impairment due to marijuana use. Urinalysis is one of the most common forms of drug testing and while it can detect marijuana in a user’s system, it cannot detect the amount of the drug present in the user’s system or how long ago the cannabis was ingested. Cannabis also metabolizes at different rates depending on the individual, which makes it difficult to determine a quantifiable level of impairment because of how long it can be detected in the system. Another option includes blood testing, which can detect marijuana from between 12 hours to seven days after use. A third alternative is saliva testing, which can detect cannabis up to 12 hours after intake.
In practice, the legalization of recreational marijuana should have little impact as to how employers and carriers approach alleged work injuries. The act does not allow compensation where the employee was intoxicated due to the unlawful or unauthorized use of cannabis. While marijuana will no longer be illegal in Illinois come 2020, the same legislation legalizing marijuana provides protections and empowers employers to maintain a zero-tolerance policy for marijuana in the workplace. In such workplaces, the use of marijuana or intoxication due to marijuana would arguably be “unauthorized” use and, thus, employers can still deny cases where there is evidence of intoxication due to marijuana at the time of the accident just as they do with intoxication due to alcohol.
Furthermore, employers are still allowed to implement reasonable drug testing policies, which can include urinalysis and saliva testing. An important caveat under the act that employers should keep in mind is that a refusal to submit to a drug test creates a presumption that the employee was intoxicated at the time. It is also impossible to overstate the importance of good experts in evaluating drug tests in intoxication cases, as they are likely to play a crucial role in cases of impairment due to marijuana.
So what can employers do to get ahead of the curve when it comes to potential marijuana intoxication? The first step is to review workplace policies as to drugs and alcohol to make any necessary revisions to address marijuana. Next, communicate the policy to all employees. It is also important to encourage management, supervisors, and employees to be aware of each other and their surroundings. Because marijuana impairment cannot be quantified, one method of demonstrating intoxication or impairment is by changes or deviations in someone’s typical behavior.
Overall, while there is some uncertainty as to how the Commission and Courts will apply the act’s provisions as to marijuana, it is certainly likely to be an issue at the forefront of workers’ compensation litigation. It is also an issue that is likely to evolve through practical application, legislative amendment, and research advancements in science and medicine.