Thursday, November 13, 2014

Drug and Alcohol Testing for Injured Workers

The 2011 amendments to Illinois Compensation Act were so sweeping that some changes have been more frequently discussed than others.  One of the most often ignored changes was the addition of an intoxication defense to Section 11.  Under the amended Section 11, employees will not be entitled to compensation if their intoxication was the proximate cause of the accidental injury, or if at the time of the accident, the employee was so intoxicated that it constituted a departure from the employment.  
The Act then went even further to state that if the employee refuses to submit to testing of blood, breath, or urine, a rebuttable presumption is raised that the employee is intoxicated and that the intoxication was the proximate cause of the injury.

In light of this rebuttable presumption, we recommend that employers review their personnel manuals and post-accident testing policies.  Employers will want be sure that the provisions encompass all workplace injuries.  For instance, the employer should require employees who sustain workplace injuries to undergo drug and alcohol testing within a certain time frame following the accident.  Employers should be mindful of the time frame allowed for the testing, and should limit it to a couple of hours to avoid any problems with delay.