ASA Addresses 2020’s Hot Topics
Author: Jennifer Maxwell
On February 26th, ASA hosted a firm dinner and addressed the “Hot Topics” for 2020. The topics included the increasing minimum wage in Illinois over the next 5 years, new case law relating to HB 3452 (interest penalty on bills paid after 30 days), Recreational and Medical Marijuana, the Opioid Alternative Program, pending legislative bills, new Arbitrator appointments, the IWCC E-Filing System, and notable cases on review. There was a lot to talk about at the dinner and the topics were definitely engaging! Here are the highlights and take-aways:
Increases in Minimum Wage - The minimum wage in Illinois increased to $9.25/hour on January 1, 2020. The minimum wage will continue to increase: $10.00/hour on July 1, 2020 and $15.00/hour by January 2025. The increases in minimum wage results in higher average weekly wages, new TTD minimums, and higher state average weekly wage—thus, this year employers will see an overall increase in exposure!
Late Payment Penalty for Medical Bills HB 3452 – 1% per month interest penalty on bills paid after 30 days and allows providers to initiate civil actions directly against employers. What does this mean for employers?
• Employers could be exposed to penalties if employees receiving medical bills directly do not immediately present them to the appropriate person.
• Employers must present medical bills to TPAs/insurers via email and provide details on when they received bills, so that TPAs/insurers can dispute or pay within 30 days.
• Workers’ compensation insurers may not cover defense costs in civil actions filed by providers if payment delays are related to employers’ actions.
Opioid Alternative Pilot Program allows certain patients who otherwise would or could be prescribed opioids, or have already been prescribed opioids, access to medical cannabis as an alternative.
Recreational and Medical Marijuana Update: Illinois started the new year with the legalization of recreational marijuana.
As you may recall, as it relates to medical marijuana, registered patients are protected under the Medical Marijuana Act from “arrest, prosecution, or denial of any right or privilege, including but not limited to civil penalty or disciplinary action by an occupational or professional licensing board, for the medical use of cannabis in accordance with this Act.” However, there is an exception—individuals can be penalized for undertaking any task under the influence of cannabis when doing so would constitute negligence, or professional malpractice or misconduct. In addition, certain professions cannot use medical marijuana, including active duty law enforcement officers, correctional officers and probation officers, firefighters, and those who have a school bus permit or commercial driver’s license.
Similarly, Section 5 of the Recreational Marijuana Act also prohibits discrimination and states that it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.
What can employers do? For both medical and recreational marijuana:
1. An employer may adopt a zero-tolerance policy.
• Not required to prove ‘impairment.’
• Not required to prove use or possession in the workplace.
2. An employer may subject an employee to a reasonable drug test, including random drug testing.
• Must be reasonable and non-discriminatory.
3. An employer may deny a job offer for failure of drug test.
• Employer may NOT deny a job offer, terminate employee and/or disadvantage employee for use of lawful products off employer’s premises during nonworking hours and non-call hours.
• Does NOT apply to a non-profit organization.
4. An employer may terminate and/or discipline employee for employer’s good faith belief that an employee used or possessed cannabis in the employer’s workplace or while performing work duties or while on-call.
• Employer does NOT need to prove the above if EE fails drug test and/or violates zero tolerance policy.
5. An employer may terminate and/or discipline employee for employer’s good faith belief that an EE was impaired as a result of cannabis use or under the influence.
EE must be afforded an opportunity to contest this determination.
What does this mean for workers’ compensation?
• The Act states, “nothing in this Act may be construed to require a government medical assistance program, employer, property and casualty insurer or private health insurer to reimburse a person for costs associated with the medical use of cannabis.” 410 ILCS 1340/40(d) [scheduled for repeal July 1, 2020].
• As it relates to employee intoxication, under the Illinois Workers’ Compensation Act, an employee is barred from recovering compensation for work injuries caused by his or her intoxication, including impairment due to consumption of marijuana.
Recently, in Reynolds v. Multi-Band, the Arbitrator denied benefits due to marijuana. Shortly after the accident, a urine test was performed which was positive for marijuana. Petitioner denied having used marijuana prior to the accident and stated that he had been exposed to "second-hand smoke" from individuals who were customers of Respondent. Petitioner did not provide any specifics at all as to when or where he was purportedly exposed to this "second-hand smoke." The Arbitrator did not find that testimony to be credible. In addition, petitioner's testimony that the accident was caused by a failure of the vehicle's brake system is also questionable. Respondent tendered service records of the vehicle which contained no reference to any brake work as having been performed on the vehicle. Further, Clifford Bigelow, an engineer, inspected the vehicle and concluded that there was no evidence of brake failure.
The Commission, in a 2-1 decision, adopted the Arbitrator’s decision. The dissenting Commissioner took issue with the majority’s decision, noting the Petitioner was never questioned regarding the specifics of the exposure. He noted there was no evidence of unlawful or unauthorized use and that for the rebuttable presumption to apply, evidence of impairment must be presented. The positive test does presupposed impairment and cited medical records which evidence that Petitioner “is alert and oriented to person, place and time . . . he has normal mood and affect.” The dissent is instructional to both Respondents and Petitioners for future cases.
Finally, of note on the federal level, President Trump’s 2021 Budget Proposal proposes to end state medical marijuana protections.
Pending Bills for 2020: There are several bills pending in both the House and Senate. The most notable ones include:
• HB 4151increases the salaries of the Commissioners, the Chairman, the Arbitrators and the Secretaries. It further provides that the performance of all arbitrators shall be reviewed by the Chairman every other year, or more at the discretion of the Chairman and that the Chairman shall have the discretion to assign arbitrators by county (rather than no arbitrator shall hear cases in any county, other than Cook County, for more than 2 years in each 3-year term).
• HB 5366 amends the Workers' Compensation Act, providing an employer may not demote an employee because of his or her exercise of rights under the Act.
• HB 5569 amends the Workers' Compensation Act and the Workers' Occupational Diseases Act and provides that first responders (firefighter, emergency medical technician or paramedic) may recover for post-traumatic stress disorder. (SB 2530 addresses this issue as well).
• SB 1422 amends the Workers' Compensation Act in relation to repetitive injuries and provides for contribution from prior employers.
• SB 3433 amends the Workers' Compensation Act and provides that the presence of 5 nanograms of tetrahydrocannabinol in the blood or 10 nanograms of tetrahydrocannabinol in other bodily substances shall create a rebuttable presumption that intoxication is the proximate cause of the injury.
• SB 3560 amends the Workers' Compensation Act and provides that an injury to the shoulder shall be considered an injury to part of the arm and that an injury to the hip shall be considered an injury to part of the leg.
• SB 3561 amends the Workers' Compensation Act and provides an alternative to posting a bond with respect to the issuance of a summons in connection with a petition for review of a Commission award.
The E-Filing System at the IWCC is an exciting change for 2020! All firms were to have registered by end of February. As soon as July, we will be able to electronically file settlement contracts. By September 2020, attorneys will be able to e-file trial motions and exhibits.
Case Law Watch: In 2020, there are two important cases pending before the Illinois Appellate Court and Illinois Supreme Court:
• Stegan v. Reladyne is on appeal before the Illinois Appellate Court. In that case, employee refused TTE (temporary transitional employment) at a non-profit. The Respondent was going to pay the employee’s full salary subject to routine HR and attendance policies. The Commission found that there was nothing in previous case law that held or suggested that an injured employee remains entitled to TTD if work within the prescribed restrictions can be found, regardless of with whom, and is not otherwise shown to be reasonable.
• McAllister v. IWCC is a “neutral risk” case pending before the Illinois Supreme Court. The Appellate Court stated, “we find it is clearer and more straightforward to focus the employment risk inquiry on whether the injury-producing act was required by the claimant’s specific job duties and not whether it could further be considered an “activity of everyday living.” Only after it is determined that a risk is not employment-related should the Commission consider and apply a neutral risk analysis. Essentially, the Appellate Court collapses the distinction between AOO & ICO and does away with the traditional “qualitative” and “quantitative” analysis. The analysis becomes a two-factor test: 1) Is the risk peculiar to employment? or
2) Is the risk is common to the general public but increased or enhanced by virtue of employment?
For more information on 2020’s hot topics, or if you have any questions, please contact us. We hope to see you at the next ASA firm dinner!