In Illinois, evidence of an injured worker’s intoxication does not automatically bar entitlement to workers’ compensation benefits. However, the 2011 Amendments to the Illinois Workers’ Compensation Act did change the law in this area to make it an uphill battle for an employee to recover for injuries sustained while intoxicated. Pre-2011, the Act provided that to deny benefits, the employer had to prove that an injured worker’s intoxication was the sole cause of the accident, or the employee was so intoxicated at the time of the injury that the intoxication constituted a departure from employment. By contrast, the 2011 Amendments to the Act provide that if an employee’s intoxication is the proximate cause of the employee’s accidental injury, or the employee was so intoxicated at the time of the injury that the intoxication constituted a departure from employment, no compensation shall be payable to the employee.
Section 11 of the Act also now codifies a rebuttable presumption that an employee was intoxicated and that the intoxication was the proximate cause of the injury if at the time of the injury: (1) there was .08% or more by weight of alcohol in the employee’s blood, breath or urine; (2) if there is any evidence of impairment due to the unlawful or unauthorized use of a controlled substance; or (3) if an employee refuses to submit to testing of blood, breath, or urine. The employee may overcome the rebuttable presumption by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries.
Any test purporting to show intoxication must be completed by an accredited or certified testing laboratory if it is to be used as evidence at trial to determine whether the employee was intoxicated at the time of injury. The specific rules on alcohol and drug sample collection and testing adopted by the Illinois Workers’ Compensation Commission can be found at Part 92140 of the Rules Governing Practice Before the Illinois Workers’ Compensation Commission.
What does this mean for Illinois employers? From an employer’s perspective, the 2011 Amendments regarding injuries involving intoxication or drug use are certainly favorable. However, as discussed above, the rebuttable presumption only applies if there is actual evidence of the intoxication. As always, the best defense is a early and thorough investigation. During the investigative phase of any potential workers’ compensation injury, it is important for the employer to note if there is any suspicion of drug or alcohol use at or around the time of injury so that testing is completed as soon as possible and/or witness statements are taken to preserve any evidence.