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Illinois Post Accident Drug/Alcohol Testing: Will the Workers' Compensation Claim Be Denied?

September 2012

By: Anthony J. Caruso, Esq.

Good news for Illinois employers. The Illinois Workers' Compensation Act has changed. Now, employees in Illinois who are drunk or under the influence of drugs will get NOTHING if they are injured at work.

For accidents at work on or after September 1, 2011, the Illinois Workers' Compensation Act under Section 11 (as amended on August 8, 2011), precludes compensation to the injured worker if the employee's intoxication was the proximate cause of the injury or if the employee's level of intoxication was sufficient to constitute a departure from employment.

The Illinois law establishes criteria for testing and sets a presumption of causation at a blood alcohol concentration of .08; evidence of impairment due to ingestion of cannabis (marijuana) or a controlled substance; or a refusal to submit to a test.

As such, an employee may rebut the presumption by proving intoxication was not the proximate or sole cause of the injury by a preponderance of admissible evidence.

Recently, the Illinois Workers' Compensation Commission filed proposed rules on sample collection and testing for alcohol and drugs to implement the criteria for testing under employer's drug and alcohol policies in order to deny workers' compensation claims under this provision.

Employers must make sure that their alcohol and drug policy is compliant; otherwise, the intoxicated employee may still be compensated for his alleged work injuries.

It is strongly recommended that every employer review its drug and alcohol policy and criteria for testing. Make absolutely certain that your policies are valid in Illinois.

If you have any questions about this topic or want a legal review of your policies, please call attorney Anthony J. Caruso of Wessels Sherman's St. Charles, Illinois office at (630) 377-1554 or email ancaruso@wesselssherman.com.