SB3433 101ST GENERAL ASSEMBLY

  
  

 


 
101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB3433

 

Introduced 2/14/2020, by Sen. Donald P. DeWitte

 

SYNOPSIS AS INTRODUCED:
 
820 ILCS 305/11  from Ch. 48, par. 138.11

    Amends the Workers' Compensation Act. Establishes standards with respect to cannabis for impairment sufficient to bar compensation for injuries to employees who are intoxicated. 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. Contains the statement: "Authorized use may be evidenced only by written consent by the employer to the employee, which consent shall not be unreasonably withheld".


LRB101 18785 JLS 68242 b

 

 

A BILL FOR

 

SB3433LRB101 18785 JLS 68242 b

1    AN ACT concerning employment.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Workers' Compensation Act is amended by
5changing Section 11 as follows:
 
6    (820 ILCS 305/11)  (from Ch. 48, par. 138.11)
7    Sec. 11. Measure of responsibility. Except as provided in
8Section 1.2, the compensation herein provided, together with
9the provisions of this Act, shall be the measure of the
10responsibility of any employer engaged in any of the
11enterprises or businesses enumerated in Section 3 of this Act,
12or of any employer who is not engaged in any such enterprises
13or businesses, but who has elected to provide and pay
14compensation for accidental injuries sustained by any employee
15arising out of and in the course of the employment according to
16the provisions of this Act, and whose election to continue
17under this Act, has not been nullified by any action of his
18employees as provided for in this Act.
19    Accidental injuries incurred while participating in
20voluntary recreational programs including but not limited to
21athletic events, parties and picnics do not arise out of and in
22the course of the employment even though the employer pays some
23or all of the cost thereof. This exclusion shall not apply in

 

 

SB3433- 2 -LRB101 18785 JLS 68242 b

1the event that the injured employee was ordered or assigned by
2his employer to participate in the program.
3    Notwithstanding any other defense, accidental injuries
4incurred while the employee is engaged in the active commission
5of and as a proximate result of the active commission of (a) a
6forcible felony, (b) aggravated driving under the influence of
7alcohol, other drug or drugs, or intoxicating compound or
8compounds, or any combination thereof, or (c) reckless homicide
9and for which the employee was convicted do not arise out of
10and in the course of employment if the commission of that
11forcible felony, aggravated driving under the influence, or
12reckless homicide caused an accident resulting in the death or
13severe injury of another person. If an employee is acquitted of
14a forcible felony, aggravated driving under the influence, or
15reckless homicide that caused an accident resulting in the
16death or severe injury of another person or if these charges
17are dismissed, there shall be no presumption that the employee
18is eligible for benefits under this Act. No employee shall be
19entitled to additional compensation under Sections 19(k) or
2019(l) of this Act or attorney's fees under Section 16 of this
21Act when the employee has been charged with a forcible felony,
22aggravated driving under the influence, or reckless homicide
23that caused an accident resulting in the death or severe injury
24of another person and the employer terminates benefits or
25refuses to pay benefits to the employee until the termination
26of any pending criminal proceedings.

 

 

SB3433- 3 -LRB101 18785 JLS 68242 b

1    Accidental injuries incurred while participating as a
2patient in a drug or alcohol rehabilitation program do not
3arise out of and in the course of employment even though the
4employer pays some or all of the costs thereof.
5    Any injury to or disease or death of an employee arising
6from the administration of a vaccine, including without
7limitation smallpox vaccine, to prepare for, or as a response
8to, a threatened or potential bioterrorist incident to the
9employee as part of a voluntary inoculation program in
10connection with the person's employment or in connection with
11any governmental program or recommendation for the inoculation
12of workers in the employee's occupation, geographical area, or
13other category that includes the employee is deemed to arise
14out of and in the course of the employment for all purposes
15under this Act. This paragraph added by this amendatory Act of
16the 93rd General Assembly is declarative of existing law and is
17not a new enactment.
18    No compensation shall be payable if (i) the employee's
19intoxication is the proximate cause of the employee's
20accidental injury or (ii) at the time the employee incurred the
21accidental injury, the employee was so intoxicated that the
22intoxication constituted a departure from the employment.
23Admissible evidence of the concentration of (1) alcohol, (2)
24cannabis as defined in the Cannabis Control Act, (3) a
25controlled substance listed in the Illinois Controlled
26Substances Act, or (4) an intoxicating compound listed in the

 

 

SB3433- 4 -LRB101 18785 JLS 68242 b

1Use of Intoxicating Compounds Act in the employee's blood,
2breath, or urine at the time the employee incurred the
3accidental injury shall be considered in any hearing under this
4Act to determine whether the employee was intoxicated at the
5time the employee incurred the accidental injuries. If at the
6time of the accidental injuries: (1) , there was 0.08% or more
7by weight of alcohol in the employee's blood, breath, or urine;
8(2) there was a tetrahydrocannabinol concentration of 5
9nanograms or more in the whole blood or 10 nanograms or more in
10another bodily substance; (3) or if there is any evidence of
11impairment due to the unlawful or unauthorized use of (1)
12cannabis, as defined in the Cannabis Control Act, (2) a
13controlled substance listed in the Illinois Controlled
14Substances Act, or (3) an intoxicating compound listed in the
15Use of Intoxicating Compounds Act; or (4) if the employee
16refuses to submit to testing of blood, breath, or urine, then
17there shall be a rebuttable presumption that the employee was
18intoxicated and that the intoxication was the proximate cause
19of the employee's injury. Authorized use may be evidenced only
20by written consent by the employer to the employee, which
21consent shall not be unreasonably withheld. The employee may
22overcome the rebuttable presumption by the preponderance of the
23admissible evidence that the intoxication was not the sole
24proximate cause or proximate cause of the accidental injuries.
25Percentage by weight of alcohol in the blood shall be based on
26grams of alcohol per 100 milliliters of blood. Percentage by

 

 

SB3433- 5 -LRB101 18785 JLS 68242 b

1weight of alcohol in the breath shall be based upon grams of
2alcohol per 210 liters of breath. Any testing that has not been
3performed by an accredited or certified testing laboratory
4shall not be admissible in any hearing under this Act to
5determine whether the employee was intoxicated at the time the
6employee incurred the accidental injury.
7    All sample collection and testing for alcohol and drugs
8under this Section shall be performed in accordance with rules
9to be adopted by the Commission. These rules shall ensure:
10        (1) compliance with the National Labor Relations Act
11    regarding collective bargaining agreements or regulations
12    promulgated by the United States Department of
13    Transportation;
14        (2) that samples are collected and tested in
15    conformance with national and State legal and regulatory
16    standards for the privacy of the individual being tested,
17    and in a manner reasonably calculated to prevent
18    substitutions or interference with the collection or
19    testing of reliable sample;
20        (3) that split testing procedures are utilized;
21        (4) that sample collection is documented, and the
22    documentation procedures include:
23            (A) the labeling of samples in a manner so as to
24        reasonably preclude the probability of erroneous
25        identification of test result; and
26            (B) an opportunity for the employee to provide

 

 

SB3433- 6 -LRB101 18785 JLS 68242 b

1        notification of any information which he or she
2        considers relevant to the test, including
3        identification of currently or recently used
4        prescription or nonprescription drugs and other
5        relevant medical information;
6        (5) that sample collection, storage, and
7    transportation to the place of testing is performed in a
8    manner so as to reasonably preclude the probability of
9    sample contamination or adulteration; and
10        (6) that chemical analyses of blood, urine, breath, or
11    other bodily substance are performed according to
12    nationally scientifically accepted analytical methods and
13    procedures.
14    The changes to this Section made by Public Act 97-18 apply
15only to accidental injuries that occur on or after September 1,
162011.
17(Source: P.A. 101-6, eff. 5-17-19.)