Synopsis: Q & A From Defense Attorney John Campbell and Lobbyist Jay Shattuck About New IL Recreational Marijuana Laws in Your Workplaces.


Editor’s comment: Our name partner John Campbell had a good question from a client worth sharing; he asked lobbying expert Jay Shattuck of the IL State Chamber if he could provide some insight. Please note Jay is not a lawyer and doesn’t profess to be; that said, in my view, he is one of our State’s top experts on understanding legislation and its impact on your business.


John Campbell noted the IL recreational marijuana statute provides that employers can maintain a “zero tolerance” policy but then outlines parameters on grounds for termination such as a positive test and other evidence of impairment.


John was asked if a zero tolerance policy means that even trace amounts of marijuana found on a drug test (well below the vehicle code limit of 5 ng for impairment) would still permit termination under a “zero tolerance” policy by an employer?


Jay Shattuck felt the answer is yes.


Jay indicated the issue that will need to be defended [by IL employers] is whether the policy is “reasonable” and “non-discriminatory”. For example, having a zero tolerance policy that allows employer disciplinary action including termination for safety sensitive jobs (not just necessarily physical tasks but employees with tasks that could adversely impact themselves, other employees, clients/customers, the public or the organization) could have a policy prohibiting  any level of THC. However, it could be considered discriminatory if the zero tolerance was THC only and did not include other substances or if the policy was applied to only one set of safety sensitive jobs and not others.


Jay felt legislative intent clearly was provided during debate of HB 1438 that IL employers with drug testing policies prior to the law would be able to continue those policies as long as the policy was reasonable and non-discriminatory.


John Campbell then asked “in other words, there is no evidence of impairment, but marijuana screen was positive at low levels upon testing. Can an employer still terminate?


Jay Shattuck again felt the answer is yes. He pointed out Subsection (d) that refers to impairment says “an employer MAY consider.” It does not require an employer to show impairment. Jay would argue that the construction of the whole section is that each subsection stands on its own. There is no connection of the subsections with an “and”.


With the most recent changes, Jay and the State Chamber believed it was also important to separate the old e-1 into two parts which was accomplished. The good faith belief provision now stands on its own and the items in subsection e are separated by an “or” not an “and”.


John Campbell, Brad Smith and Matt Ignoffo of KCB&A are veteran lawyers who are developing a strong expertise on defending employers who will be dealing with marijuana use in and around your workplaces. Feel free to contact any of them to consult and advise you on all aspects of the new challenges you are certain to face.


We also strongly recommend our clients and potential clients join the IL State Chamber of Commerce that is the leading proponent/protector of IL business and local governments. We salute the hard work of Jay Shattuck and other Chamber folks that helped form this new legislation in a state legislature that is somewhat one-sided.


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Synopsis: Gene Keefe’s Year-End IL WC Contest to Locate Well-Paid Medium Duty Jobs for IL Injured Workers.

Editor’s comment: I feel there is flawed math in many major IL WC claims. Peter or Paula Petitioner might be a large/strong person. Petitioner has a job in construction, trucking or any industry that pays well for healthy peeps but relies on the worker being able to lift 50-75lbs. regularly. The worker suffers a strain/sprain with maybe one surgery. After surgery, the unwitting and otherwise unknowing doctor who is treating Claimant prescribes an FCE or functional capacity evaluation—the claim moves into what I call “the IL WC FCE dance.”


The IL WC FCE Dance


Please note my continuing and well-founded disdain for FCE’s. The main issue I have is everyone who goes through surgery and then gets into post-surgical physical therapy is guided by RPTs or registered physical therapists. The RPT’s carefully and diligently record progress and complaints and do their very best to get their patients back to the best possible function. At the end of the course of PT, how can it make any sense to ignore the PT records/care and progress to then do a two-hour “test” where the patient’s life is measured by the hilariously unscientific and subjective methods of an FCE. Please also note a patient can’t “fail” physical therapy—if they don’t cooperate, the RPT will discharge them. In contrast, I have probably seen over a hundred “failed” FCE’s where the person conducting the test reaches the conclusion the patient isn’t cooperating and the testing is invalid. The problem with the finding of invalidity is our IL WC Arbitrators won’t toss out the invalid test, they will still “rely” on it to some extent in valuing wage loss and/or permanency.


Going back to Peter or Paula Petitioner above, when the large/strong claimant goes to the FCE, they are “coached” to fail. There are many easy ways to fail an FCE. I saw one claimant who had one operation to one knee. Pro football players could have the surgery this claimant had and return to work, pro football, in a week. This guy underwent surgery and had no real issues through physical therapy. At the end of PT, he was obviously coached in the IL WC FCE dance—during the supposedly scientific testing, whenever he lifted anything he would routinely tell the evaluator it caused subjective and unverifiable pain. He complained so often he convinced the evaluator who found his complaints somehow “valid,” as if he was able to look into this guy’s body to confirm he was telling the truth and not making it up.


After the somehow “valid” FCE test, the evaluator assigned medium work restrictions for the rest of this person’s entire life. As I indicate above, the FCE test can be two hours long but whatever claimant does for those two hours is “life-changing!!” What a hoot.


After being assigned work restrictions, claimant has now reached his goal of an IL WC ‘Jackpot.’ For construction workers and truck drivers the IL WC FCE Dance now supposedly documents a lifetime limited ability of being only able to work at minimum wage where their prior job required heavy lifting. In the IL construction industry, workers make $40-60 per hour so they win the IL WC FCE dance to be entitled to gigantic wage loss until they reach age 67. For most workers in their 30’s and 40’s, the discounted present value of such a claim is between $300-600K!


Okay, Gene, so what is the contest?


Well, I am not willing to accept that every large/strong worker with one surgery to one body part can only make minimum wage. I want your help to locate well-paid jobs that someone with a high school education and some training can do in relatively short order with sedentary, light or medium work restrictions. I am offering $50 of MY money to buy an Amazon Gift Card for each winner and will publish your recommendations if you give me authority to do so.


Examples of Medium/Light Jobs for Large/Strong Workers? I have a bunch.


First, please consider USPS—yep, the good ole Postal Service. If you go to the USPS jobs website, you will note starting pay for postal workers and managers in most places is $21 per hour! Median pay is $36 per hour with full federal healthcare and pension benefits. The USPS website indicates lots of their workers make over $100K a year!


Please note mail carriers with USPS have to lift up to 70lbs when they grab the mail sack. You don’t want medium/light duty claimants going for mail carrier positions, either in a city or rural. But all other USPS jobs, like window clerks and mail sorters are light or medium work and only have some training requirements. Selling stamps isn’t hard work.


Second, “no touch” city trucking jobs are another possible option for Peter or Paula Petitioner. Most Claimants have to drive to their doctors and FCE’s and all medical care. If they can drive their car, they can and should be able to drive a truck. The one downside to this path for getting a big person with restrictions back to medium work is they have to take a truck driving course and get a CDL or commercial driver’s license. That takes some time and has its own cost but it is better than paying a mildly injured worker a zillion bucks to get rid of them.


Third, I have posted this in the past and I need your thoughts on 911 Emergency Call Center jobs. Basically, this is manning or “womanning” phones. The worker needs about 90 days of training and has to learn “cop talk” to talk to reporting officers and others on the phone. This is a fully sedentary job. There are always openings because the position has to fill a chair on a 24/7 basis. Folks working at these positions are paid similar to police and firefighters—they make around $50K a year to start and quickly move up in the range of $100K with full pension and healthcare benefits.


What Do You Think?


Do you know of such positions? Again, they have to be well-paid jobs. They also have to be positions with sedentary, light or medium work. If the position will allow the worker to alternate sitting and standing, all the better. Training can’t be long because employers will have to pay TTD during training which could make the cost prohibitive if the training was a year or more.


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