Failing a drug test after an Illinois work injury

In September of 2011, the Illinois Workers’ Compensation Act was changed.  Among the new rules is the following:

Intoxication Defense: An employee is not entitled to workers' compensation benefits if involved in an accident that is a direct cause of drugs or alcohol use. Also an employee may not be awarded workers' compensation benefits if he or she fails a drug or alcohol test.  If there is evidence of a blood alcohol level of .08% or if there is evidence of impairment as a result of the use cannabis or other drugs, then it will be presumed the employee was intoxicated and intoxication was the proximate cause of the injury. To overcome the denial of benefit, the employee has the opportunity to present admissible evidence that indicates intoxication was not the sole cause of the accident.  The statute provides that a drug or alcohol test should be taken immediately after the accident.

In plain English this means that if you get hurt on the job you can be given a drug test and that if you fail the test your benefits can be denied. 

This is a ridiculous rule.  The old rule was that if there are drugs or alcohol in your system and you get hurt on the job, if being intoxicated led to your accident your claim could be denied.  That’s common sense.  So if you are drunk at work and cut your hand with a saw, you lose the case.

The new rule says that even if you smoked pot on a Friday night, if you get hurt at work the following Tuesday and marijuana is in your system, the insurance company can deny your benefits.  That makes no sense as clearly in that example, your drug use would have nothing to do with you getting hurt.  It’s just a cheap way for insurance companies to screw workers.

All is not lost under this new rule.  The bad news is that your benefits can be denied.  The good news is that you can still go to trial and credibly testify that your drug use had nothing to do with you getting hurt.  If there are any witnesses that say you were acting erratically you are screwed, but otherwise if the truth is that you hadn’t used for days, you should be ok.

Many lawyers will turn down these cases because they know off the bat that they will have to go to trial and a dirty little lawyer secret is that many attorneys don’t want to go to trial because they don’t like to do work.  We are happy to go to trial if need be as are the lawyers in our statewide network.

So if you do fail a drug test, don’t panic.  It will make your case much harder, but it’s not impossible to win.  It just will take longer and require some work.

We are workers' compensation attorneys who help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact us and we will answer your questions or find the right lawyer for your situation.

8/28/12