Synopsis: Gene Keefe and Matt Ignoffo on Dealing With Marijuana/THC in the Workplace for Illinois and Other States. Part 1; Part 2 Next week.
Editor’s comment: Gene and Matt have developed a great presentation for your managers or the OccHealth Department of any hospital. If you are interested in a presentation and/or webinar, send a reply.
Here are the salient points on Marijuana in the Workplace.
Understand the laws on Marijuana/THC and prescription medications that are specific to your State;
Adopt a pre-duty prescription medication and impairing substances safety policy;
Update job descriptions;
Let employees know your stance on Marijuana/THC and prescription meds and their use at work
Remember, Current Testing for Marijuana Is NOT Precise
Current testing for marijuana use will only confirm the presence of Marijuana/THC in the user’s system for as long as 30 days.
Unlike alcohol or COH, you can’t confirm blood THC levels, like you can confirm blood alcohol levels.
This makes it more challenging to measure, demonstrate and rein in “impairment” or what a factor varying Marijuana/THC levels might cause.
For that reason and others, we feel it better just to draw the line—no marijuana/THC use at your work sites.
Enforcement and safety are the challenges.
Testing for Impairment is Possible but Certain to be Legally Challenging
Police in California and other states have developed DRE’s or Drug Recognition Expert evaluations to try to keep stoned drivers off their roads.
The same “math” may soon apply in your workforce.
You might want to consider having one or several managers undertake the DRE process.
Matt and I suggest you Adopt A Pre-duty Prescription Medication & Impairing Substance Safety Policy
Requires employees working in safety-sensitive classification to disclose that they have taken an impairing effect prescription or other substance;
Define safety-sensitive and list job classifications as possible;
Make it part of the your overall safety policy;
Once disclosed, you, as the employer reserve the right to send employee for fitness-for-duty evaluation with copy of your new safety-focused job description;
Encourages employees to first provide their own physician a copy of their job description and make a fitness-for-duty determination; and
You as the employer reserve your right to make final fitness-for-duty determination, maybe using a Medical Review Office (MRO).
We also recommend you update your job descriptions
Every job description has to be in compliance with the Americans with Disability Act (ADA) and should list “Essential Job Functions.”
If the employee works in a safety-sensitive job category, one of the essential functions listed should be “the ability to work in a constant state of alertness and in a safe manner.”
Educate yourself on the workplace related impairing effects of Marijuana/THC
Marijuana/THC causes an inability to concentrate or remain focused on a single thought or idea.
It also causes increased drowsiness, fatigue and lethargy.
Your workers will have an inability to accurately gauge lengths of time and distance as well as impairment of hearing and vision and short term memory.
Your impaired workers may have an inability to cope with sudden changes in surrounding and/or emergency situations.
It is possible for them to have visual and/or auditory hallucinations.
Finally, you might expect a non-caring, uncommitted, unconcerned attitude.
How To Best Deal with Marijuana/THC in your Workplace—Don’t!!!!
We have clients across the U.S. asking about the optimal approach to marijuana/THC in their work sites
We recommend an easy approach to this issue—start now and forever ban marijuana/THC in your workplace whenever possible
All states we are aware of allow you to legally stop its use in your work sites
If you don’t act before you get a marijuana user asking about it and you block that user and then start to ban its use, you are almost certainly looking at a discrimination action
More to follow next week.
Synopsis: Iannoni Reversed by IL Appellate Court—Employers Do Not Have to Pay Unaccrued PPD in Lump Sums.
Editor’s comment: I read a mildly shocking IL WC ruling on a national website about a Cook County Circuit Court judge who ordered the City of Chicago to pay unaccrued permanency in a lump sum, even though the money wasn’t yet “due.”
Acting as if no one could ever disagree with this new and unprecedented ruling, the Circuit Court judge also awarded something like $34K in penalties against the City for not paying in a lump sum along with just under $3,500 in interest. Holy cats!!!
The Court’s order said:
A permanent disability is immutable. It will not go away. The worker who suffers from a permanent disability is therefore entitled to a lump sum benefit in exchange for the loss of the complete use of their person. This is in sharp contrast to a temporary disability. It makes sense that temporary disability benefits would accrue on an installment basis during the pendency of the disability—the purpose of temporary disability benefits is to compensate the worker during their period of incapacity.
In my respectful view, the Circuit Court judge was simply wrong and the ruling cannot comply with the legislation he was analyzing. You will note there is a specific section of the IL WC Act that allows parties on either side to go in to our Commission within a certain time and seek more or less permanency—in short, the legislature understood “permanent disability is not immutable.”
I am happy to report the Circuit Court’s ruling was just unanimously overturned by our Appellate Court. If you want the link to the ruling, send a reply.
I appreciate your thoughts and comments. Please post them on our award-winning blog.
Illinois Chamber of Commerce Conference 10/8/19
Agenda will include:
7:30 a.m.–8:30 a.m. Registration and Breakfast Networking – Expo is open
8:30 a.m.–8:55 a.m. Opening Remarks
Jay Shattuck, Executive Director Employment Law Council, Illinois Chamber of Commerce
Michael Brennan, Chairman, Illinois Workers’ Compensation Commission
8:55 a.m.–9:45 a.m. General Session – Medical and Recreational Marijuana in Illinois and the effect on WC Claims Handling
Shuaib Ahmed, ASA Law Group Shuaib Ahmed will dissect the Medical Cannabis Act, discuss both medical and recreational marijuana in Illinois and the challenges facing Employers navigating Workers’ Compensation claims.
9:45 a.m.–10:10 a.m. Morning Break & Visit Exhibitors
10:10 a.m. – 11:05 a.m. First Series of Workshops
Workshop #1: Shawn Biery, John Campbell and Bradley Smith, Keefe Campbell Biery & Associates
Impact and Implications of SB 1596 (Civil Action may be brought against Employer) Join John Campbell and Shawn R. Biery from Keefe, Campbell, Biery & Associates for a break out session discussing the impact and implications of SB 1596, as well as brainstorming strategies on how employers can best prepare to protect themselves. These veteran workers compensation defense attorneys will also cover relevant recent case law updates to provide guidance which will be helpful for anyone who deals directly or peripherally with workers’ compensation claims. Questions will be entertained throughout to drive the discussion toward specific avenues of interest from the audience.
Workshop #2: Michael Teti, Digistream Investigations in the Age of Geosocial Data
The current growth of geosocial data is changing the face of risk management and investigations. Learn what geosocial data is, and exactly how this type of information is used to uncover fraud and investigate insurance claims of all kinds. Understand how to gain eye-opening insight into accidents, site-security, workplace harassment, and high exposure incidents by locating social media photographs, videos and posts at specific locations and times anywhere in the world. The session examines successful real life cases, fascinating trends in social media, privacy and legal issues, as well as preserving, authenticating and presenting cyber evidence in court. Attendees will work with an understanding of best practices and ethical requirements for a successful geosocial investigation and how to add this new information into their already wide range of skills.
Workshop #3: Surbhi Saraswat Goyal and Charles Maring, Brady Connolly Masuda, P.C. Defending Work Injuries . . . Before They Happen!
In this workshop learn practical, low-cost strategies that employers can implement in-house to prepare for a work injury before it happens! Attorneys Surbhi Saraswat Goyal and Charles M. Maring, II reveal battle-tested strategies and helpful trial evidence that is beneficial in the defense of workers’ compensation claims. These strategies can help Employers, Human Resource and Safety Personnel meditate costs and protect the company’s interests. Know your rights as an employer and turn standard practices into assets!
11:10 a.m. – 12:05 p.m. Second Series of Workshops
Workshop #1: Brian Clay, MD, Illinois Bone & Joint Institute Standardizing a Return to Work Protocol for Back Injuries in the Workplace
Attendees will understand the markers of when a patient can return to work duty with low back pain, what to avoid, standard practices, and improvements in the process. By following a researched set protocol, return to work for low back injuries will be more efficient and economical. Attendees will also understand the insurance implications, cost saving, and improved return to work times for these patients by following a researched protocol.
Workshop #2: Steve Murdock and Jynnifer Cotharn, Inman & Fitzgibbons, Ltd. Best Tools for Defense; Strategic Use of IMEs, Record Reviews, Utilization Reviews, Impairment Ratings
Effective claims management often requires different strategies at different points in the litigation process. Understanding the tools that are available to help protect the insured’s interests is a critical part of claim handling. Should I get an IME? What are the benefits of obtaining a Utilization Review? How much weight is given to an impairment rating? In this seminar, we will address these questions along with four defense tools, their benefits and risks, and how each tool impacts cost and advancement of claims to closure.
Workshop #3: Jeffrey Risch, Smith Amundsen, LLC OSHA Obligations and Workers Compensation in Illinois
In this presentation, led by Labor & Employment Attorney Jeffrey Risch, attendees will receive the latest in employer OSHA obligations related to work related injuries and claims. From reporting and recording requirements, to drug testing rights and disciplinary options when an employee is involved with a work related injury due to an unsafe act or rule violation, attendees will hear the very latest on what employers must do, can do, shouldn’t do and can’t do when it comes to OSHA and work related injuries.
12:05 p.m. – 12:30 p.m. Visit Exhibitors & Networking Break
12:30 p.m.–1:30 p.m. Luncheon with Keynote Speaker
The Intersection of Rx Opioids & Medical Marijuana Mark Pew, Senior Vice President, Product Development & Marketing, Preferred Medical Medical cannabis as a substitute for prescription opioids continues to grow in the public (and private) discourse on pain management. Is that a surprise? For citizens of Illinois it should not be since last year’s introduction of the “Opioid Alternative Pilot Program”. But Illinois is not alone in the connection as per the January 24, 2019 blog post “Marijuana & Opioids” that listed three other states with an explicit connection (Colorado will officially make it five total in August 2019) and another six states with an implicit connection. While this connection is mostly political and anecdotal (based on personal stories and experiences) there is a growing amount of science (clinical studies) to substantiate the premise. This session will discuss the evolution in thought, present the anecdote and evidence behind the connection, highlight the implications for workplaces, and talk about how a drug-for-drug substitution might not be the full answer.
1:30 p.m.–2:30 p.m. Roundtable Discussion with Q&A
Moderator: Jay Shattuck, Exec Dir Employment Law Council, Illinois Chamber of Commerce • Panelist: Amy Bilton, Nyhan Bambrick Kinzie & Lowry
Panelist: Dr. David Fletcher, Safeworks Illinois
Panelist: Mike Brennan – Chairman, Illinois Workers Comp Commission
Implementation of SB904 and discussion of billing and payment problems in the WC system
2:30 p.m.– 3:00 p.m. Drawings for Prizes & Closing Remarks
3:00 pm Adjourn
Questions on this event or other IL Chamber Business Services events?
Contact the Business Services Coordinator,
P: 217-522-5512 Ext. 227