Tag Archives: Illinois

Opioids in the Workplace

Contributed by Michael Wong, November 3, 2017

One of the first questions I ask when providing drug and alcohol training to managers, supervisors and employees is “What is the most commonly used illegal drug?” Typically, the response that I get will be alcohol (albeit not illegal) or marijuana. What most do not realize until the training is that prescription drugs, in particular opioids, are the most commonly abused illegal drug. Prescription opioids include hydrocodone, oxycodone, morphine, codeine and fentanyl, while illegal opioids include heroin.

J0337282Opioid use in the United States has started to take on a whole new form and is now commonly referred to as the opioid epidemic. Illinois has not escaped the opioid epidemic; in 2016 there were 2,278 drug overdose deaths of which over 80% (1,826) were opioid related. The number of opioid related deaths in 2016 was an increase of over 30% of the opioid related deaths in 2015 and an increase of over 70% of the number of opioid related deaths in 2013.

In looking at these numbers, it is important to understand that these are only the deaths – not the actual number of individuals using or abusing opioids. In a recent study by the National Safety Counsel, over one in three Illinois residents (35%) reported being impacted by opioid/heroin use by knowing someone (self, family/friend, co-worker/co-workers’ family, or neighbor/neighbor’s family) that started using opioids/heroin, became addicted to opioid/heroin, survived an opioid/heroin overdose or had died from an opioid/heroin overdose. Indeed, one issue with the opioid epidemic is that the gateway to opioid use does not always come from illegal activities, but can start out with a legitimate legal prescription. When there is a valid use for a prescription drug, an individual can feel like they are not doing anything wrong and their use can quickly turn into a slippery slope of addiction, activities that negatively impacts their work performance and potentially illegal activities. As a result of this, the opioid epidemic does not discriminate and can be found across all demographics, industries and positions.

One of the concerns with opioids for employers is that it is more difficult to tell if someone is under the influence or using opioids or heroin than other more traditional drugs. For instance, opioids and heroin do not come with symptoms or indicators that are easy to perceive like with alcohol – a smell, shaking hands and movements, and behavior changes; or with marijuana – a smell, red eyes, delayed reaction time, anxiety, and lack of coordination. With opioids, it is often difficult for employers to make the connection between an employee appearing groggy, sleepy or forgetful in the workplace to being linked to drug use. Indeed, what employers will typically see, if anything at all, is a gradual decline in an employee’s attendance and performance, until the employee loses their job or stops coming to work altogether.

The traditional tool of employers to identify and prevent drug and alcohol use within the workplace is drug testing. Pre-hire drug testing can be effective in preventing illegal opioid users from joining the workforce. However, drug testing is not always effective where the opioid user has a legal prescription or where the individual is not yet an opioid user. Reasonable suspicion drug testing can also be effective, but first requires reasonable suspicion of opioid use which can be difficult to identify.

So what does this leave? First and foremost, employers should re-evaluate their drug policies and testing procedures and understand the potential legal implications. For example, drug testing can be modified to test for legal prescription medications, but in order to avoid a violation of the ADA the applicant or employee must be able to provide an explanation for the positive drug test, such as a prescribed medication. Additionally, employers must realize that even if the employee is using prescription medication, there may be an underlying medical condition that they need to be aware of to avoid any kind of disability discrimination claim.

Next, employers should consider questioning its health care benefit carrier and workers’ compensation carrier on what actions they are taking to address the opioid epidemic and collaborating with them on any specialized programs or options for addressing. This can include learning about whether the carrier has programs for the conservative use and risk of prescription opioids, an opioid management program and/or a prescription benefit management program, which can help in preventing prescription medication abuse and identify the abuse of prescription medications. In doing so, employers should also consider investing in an employee assistance program (EAP), which can help employees avoid or address addiction.

Another investment that can pay dividends is management and employee education. Better training and education for not only management, but also employees regarding the impacts of opioids, how to identify opioid use and how to address opioid abuse. Management training can help make management more aware of how to identify potential issues before they occur and get employees help before it escalates to more serious problems. This includes not only taking into consideration the symptoms of opioid and other drug use, but also recognizing changes in how employees are acting, their performance, their attendance, any recent injuries they have had and any other issues that could indicate drug abuse. Employee training can help employees understand the danger of opioids, how the use of legal use of prescription opioids can lead to addiction, and what steps can be taken to seek assistance. Of course, any training should be tailored to include information regarding the Company’s policies, drug testing, benefit programs and reassurances regarding the Company’s commitment to providing confidential and accessible help and treatment.

Finally, one thing to remember is that despite the high numbers of deaths in 2016 in Illinois, Illinois is still behind many states in its exposure to the opioid epidemic. Indeed, in some places manufacturing employers have found using pre-hiring drug testing was not effective. The reason for this is it significantly increased the number of applicants they have had to go through in order to hire for a position or was making it near impossible to fill their staffing needs due to applicants not returning after learning there was drug testing or applicants consistently failing the drug test.

 

Medical Marijuana Update: Colorado Supreme Court Upholds That Employers May Enforce Drug Free Workplace Policies

Contributed by Michael Wong

On June 15, 2015, the Colorado Supreme Court upheld the appellate court’s ruling that employers can lawfully terminate employees for use of medical marijuana outside of work in compliance with a drug free workplace policy in Coats v. Dish Network, 2015 CO 44 (June 15, 2015).

This is an important decision for employers as many of the state laws “legalizing” marijuana for medical and/or recreational use have been recognized as providing protections from criminal laws, but are unclear as to how much, if any, civil or employment protections are provided to employees under those laws and other state laws.

In Coats v. Dish Network, an employee in an administrative position tested positive during a random drug test. The employee advised the employer that he had a state-licensed medical marijuana card and only used marijuana at home outside of work. After reviewing this information the employer terminated the employee for violating its drug free workplace policy.

The employee then sued the employer under Colorado’s Lawful Activities Act, Colo. Rev. Stat. Ann. § 24-34-402.5 (West), which prohibits employers from disciplining or terminating an employee for lawful activities engaged in off the premises of the employer during non-working hours. Colorado’s Lawful Activities Act is similar to many other state laws, including Illinois, California, Minnesota and New York, which were primarily enacted to prohibit employers from having policies that would prohibit employees from engaging in lawful activities, such as tobacco and alcohol use, outside of work.

The Colorado Supreme Court held that the Colorado Lawful Activities Act only protected outside-of-work activities that are lawful under both Colorado law and federal law. As such, any activities that are unlawful under federal law, like the use of marijuana (medically or recreationally), are not protected under Colorado’s Lawful Activities Act.

This is important, as Colorado employers are able to enforce drug free workplace policies without violating Colorado’s Lawful Activities Act. Additionally, it provides employers in other states some indication that their state courts may follow the Colorado Supreme Court’s lead and find that employers may still enforce drug free workplace policies without violating their state laws. It should be noted that the Colorado Supreme Court relied in part on the federal classification of marijuana as a Schedule I drug that has no medically accepted use, a high risk of abuse and a lack of accepted safety for use under medical supervision, and that a change to the federal classification of marijuana could impact this decision.

The takeaway from the Coats v. Dish Network decision for employers is that until there is clear statutory language or case law stating otherwise, employers are able to enforce their drug free workplace policies. That being said, since this is an issue in which case law is still developing and each state has different statutory language and regulations, employers should consult with legal counsel in addressing these types of issues prior to making any discipline or termination decision.

Illinois Governor Signs Bill Creating Mandatory Retirement Program for Illinois Businesses

Contributed by Kelly Haab-Tallitsch

The Illinois Secure Choice Savings Act (Secure Choice Act) was quietly signed into law by Illinois Governor Pat Quinn over the weekend.  The controversial legislation will require most businesses in Illinois to adopt a retirement savings plan for their employees by June 1, 2017.

The Secure Choice Act creates a state-run retirement savings program in which eligible workers can contribute to a Roth IRA through automatic payroll deductions from their paychecks. Employers with 25 or more employees, who do not offer another type of retirement program, will be required to offer the state-run IRA arrangement or be subject to a fine of $250 per employee per year. Employers that sponsor other types of private retirement plans, such as a 401(k) or pension plan, are not subject to the requirement or fines.

Once the Illinois Secure Choice Program is up and running – expected to be 2017 at the earliest – employees will be automatically enrolled in the program, with a default 3% payroll deduction per paycheck.  Employees will have the option to change their deduction percent or to opt out of the program entirely. Employers and the state will not make contributions to employees’ accounts.

The Secure Choice Act creates yet another set of administrative and recordkeeping requirements for small businesses. Once the program is implemented by the state, employers will be required to:

  • Set up and maintain a payroll deposit savings arrangement that provides for payroll deduction of funds from employees paychecks and deposits those funds into the program;
  • Provide employees with the state-provided information packet upon launch of the program and to new hires on an ongoing basis; and
  • Enroll all employees who don’t opt out of the program using the form provided by the state.

The Secure Choice Act provides for implementation of the program within 24 months, with the potential to delay further if the Illinois Secure Choice Board fails to obtain adequate funds to implement the program. The federal government could also delay the implementation if it determines that the IRA arrangements offered are not tax qualified or that the program is an ERISA employee benefit plan, and thus governed by federal, not state, law.

Employers affected by the Secure Choice Act should begin to examine other types of retirement plans while awaiting further information on implementation of the state program. Several options are available for small to mid-sized businesses, including IRAs, 401(k) Plans, and Simplified Pension Plans (SEP). IRS resources on retirement plans for small businesses can be found at http://www.irs.gov/Retirement-Plans/Help-with-Choosing-a-Retirement-Plan.

The passage of the Illinois Secure Choice Act makes Illinois the only state in the country with a state-run automatic enrollment payroll deduction retirement savings program for private sector employers.

UPDATE – Up Up and Away the Minimum Wage Rate Went

Contributed by Julie ProsciaCash

On Tuesday November 4, 2014 all five states that had initiatives on the ballot – Illinois, Alaska, Arkansas, Nebraska, and South Dakota – passed measures to increase the minimum wage. As a reminder, the initiative in Illinois was nonbinding.  Most of the increases will occur in a step manner, but all will need to be evaluated for the impact on our pay and businesses.

The state roundup of Minimum Wage Initiatives is as follows:

Illinois

The Illinois Minimum Wage Increase Question, which was on the November 4, 2014 ballot, passed. This initiative was an advisory question and is NON-binding. The measure asked voters whether or not they support increasing the hourly minimum wage rate from the current rate of $8.25 per hour to $10.00 per hour by January 1, 2015.

Arkansas

The Arkansas Minimum Wage Initiative, which was on the November 4, 2014 ballot, passed. The Arkansas state minimum wage rate will increase from $6.25 to $7.50 per hour beginning on January 1, 2015; to $8.00 per hour beginning on January 1, 2016; and to $8.50 per hour beginning on January 1, 2017. Employers in Arkansas that do more than $500,000 in business per year are currently required to pay at least the federal minimum wage rate of $ 7.25 per hour.

Alaska

The Alaska Minimum Wage Initiative, which was on the November 4, 2014 ballot, passed.  The Alaska state minimum wage rate will increase from $7.75 per hour to $8.75 per hour beginning on January 1, 2015, and the rate will increase again to $9.75 per hour beginning on January 1, 2016. After 2016, the rate would be adjusted either based on inflation, or remain $1.00 higher than the federal minimum wage, whichever amount is greater.

Nebraska

The Nebraska Minimum Wage Initiative, which was on the November 4, 2014 ballot, passed. The measure will increase the state’s minimum wage rate from $7.25 per hour to $8.00 per hour beginning on January 1, 2015, and from $8.00 per hour to $9.00 per hour beginning on January 1, 2016.

South Dakota

Lastly, the South Dakota Minimum Wage Initiative, which was on the November 4, 2014 ballot, also passed. The measure will increase the minimum wage from $7.25 per hour to $8.50 per hour beginning on January 1, 2015. Thereinafter, an increase in the minimum wage rate will occur each year based on inflation.

Up Up and Away the Minimum Wage Rate Goes?

Contributed by Julie Proscia

On November 4, 2014, five states — Illinois, Alaska, Arkansas, Nebraska, and South Dakota — as well as a handful of cities and counties, will all vote on various binding and non-binding initiatives that contemplate raising the minimum wage.  These state and local initiatives arise after a failed attempt to bring the issue on the federal level earlier this year, and are important to watch in an ever borderless commerce system.

The state roundup of Minimum Wage Initiatives is as follows:Ballot Box

Illinois

The Illinois Minimum Wage Increase Question, which is on the November 4, 2014 ballot, is an advisory question and is NON-binding. The measure asks voters whether or not they support increasing the hourly minimum wage rate from the current rate of $8.25 per hour to $10.00 per hour by January 1, 2015. Although the result of the question is not binding, supporters are hoping to use an affirmative vote to increase momentum for subsequent legislation.

Arkansas

The Arkansas Minimum Wage Initiative is on the November 4, 2014 ballot as an initiated state statute. After much litigation, the Arkansas State Supreme Court denied a Little Rock businessman’s effort to block the ballot question and the initiative will be voted on. If successful, the Arkansas state minimum wage rate would increase from $6.25 to $7.50 per hour on January 1, 2015; to $8.00 per hour on January 1, 2016; and to $8.50 per hour on January 1, 2017. Employers in Arkansas that do more than $500,000 in business per year are currently required to pay at least the federal minimum wage rate of $7.25 per hour.

Alaska

The Alaska Minimum Wage Initiative is on the November 4, 2014 ballot.  If successful, it would increase the state’s minimum wage rate from $7.75 per hour to $8.75 per hour beginning January 1, 2015, and the rate will increase again to $9.75 per hour on January 1, 2016. After 2016, the rate would be adjusted either based on inflation, or remain $1.00 higher than the federal minimum wage, whichever amount is greater.

Nebraska

The Nebraska Minimum Wage Initiative is on the November 4, 2014 ballot as an initiated state statute. If successful, the measure would increase the state’s minimum wage rate from $7.25 per hour to $8.00 per hour on January 1, 2015, and from $8.00 per hour to $9.00 per hour on January 1, 2016.

South Dakota

The South Dakota Minimum Wage Initiative is also on the November 4, 2014 ballot as an initiated state statute. If successful, the measure would increase the minimum wage from $7.25 per hour to $8.50 per hour beginning on January 1, 2015. Thereinafter, an increase in the minimum wage rate would occur each year based on inflation.

Although midterm elections are typically not as exciting as presidential years, the November 4, 2014 election has the potential to impact numerous employers in multiple states throughout the country and is definitely one to watch. We will keep you posted!

Paid Sick Leave? Ban The Box? Pregnancy? Equal Pay? Smoker Retaliation Poster? Here’s Your State Employment Law Update

Contributed by Heather Bailey

Reminder: EEO-1 Surveys Due To Be Filed By September 30th! 

US Map

Arizona:  In July, the Attorney General confirmed that the AZ smoking restrictions do not apply to e-cigs.

California: Employers, get ready to start having to offer paid sick leave beginning July 1, 2015 if you aren’t already!  See our September 16, 2014 post for more details.  Also, beginning January 1, 2015, unpaid interns and volunteers are getting the same nondiscrimination and harassment treatment as paid workers, including non-harassment training.

Connecticut:  Starting October 1, 2014, workers may obtain certificates of rehabilitation related to their arrests and convictions of which employers are prohibited from retaliating against employees and applicants when they present one for initial or continuing employment.

Delaware:  Your minimum wage increased to $7.75 per hour on June 1, 2014!

Illinois:  In case you missed our other blog posts, effective January 1 2015, Illinois joined the ranks of the “Ban the Box” campaign, which prohibits employers (with 15 or more employees) from asking applicants about criminal records on a job application.  You cannot do so until they have either been selected for an interview or been given a conditional offer of employment (with a few select exceptions).  Also effective January 1, the Illinois Human Rights Act related to pregnancy was expanded (more than any other state) so employers must now reasonably accommodate any condition related to pregnancy.

Indiana:  On September 2, 2014, the right to work law was upheld once again – this time by the 7th Circuit Court of Appeals.

MassachusettsPlease note your minimum wage hikes: January 1, 2015, $9 per hour ($3 an hour for tipped employees); $10 an hour ($3.35 for tipped employees) on January 1, 2016, and to $11 ($3.75 for tipped) beginning January 1, 2017.

Michigan: Your minimum wage increased to $8.15 per hour on September 1, 2014.

Missouri: The Missouri Supreme Court recently held that the state’s statutory cap on punitive damages is unconstitutional as is applied to certain common law claims. (Lewellen v. Franklin, case SC92871). The holding is limited to common law causes of action that existed when the Missouri Constitution was adopted in 1820.  In the short-term, this decision may raise the cost of litigation as plaintiff’s attorneys will undoubtedly try to add common law claims to employment lawsuits hoping that the threat of unlimited punitive damages will result in more generous settlements.  However, given that traditional common law claims have been increasingly difficult to sustain in the employment context and have been largely supplanted by statutory and more recently-recognized common law actions, Lewellen is ultimately unlikely to raise the stakes for Missouri employers.  Read more about this here.

New Hampshire:  Beginning January 1, 2015, employers have a new mandatory poster requirement for equal pay and smoker rights non-retaliation, as well as, employers may not prohibit employees from discussing pay wages or retaliate against them for doing the same.

Oklahoma:  OK jumped on the band wagon by prohibiting employers from requiring employees to give up their personal social media log-ons and passwords, effective November 1, 2014.

Vermont: Vermont’s smoking ban includes at least 25 feet from buildings and entrances.  Your minimum wage obligations also increase: January 1, 2015 = $9.15 per hour; January 1, 2016 = $9.60; January 1, 2017 = $10 and January 1, 2018 = $10.50.  All tipped employees must be paid at least one-half of the minimum wage effective January 1, 2015.

WORKERS’ COMPENSATION UPDATE: Compensability in IL Expanded to Cover Certain Personal & Neutral Risks

Contributed by Anita Johnson

In a recent workers’ compensation case, the personal and neutral risk defenses have been seriously eroded via an appellate court created exception based on the number of times an employee is exposed to a neutral risk (no greater risk than the general public/no defect) with employer knowledge of the personal condition.

In the case of Village of Villa Park, a community service officer suffered from a right knee condition related to a prior non-work injury (fall on ice at his vacation home).  Due to the injury suffered in that accident, the petitioner was scheduled for surgery, at the time of the work incident.  He continued to work his regular duties which were clerical in nature and conducted on the main floor of the building.  These occasioned him to use a normal stairway open to the general public to the lower level of the building, which contained locker rooms, a briefing room, a lunch area and a shooting range.

Before his shift, he would descend the stairway to the locker room to change into his uniform.  He would go to lunch, acquire rain gear or other equipment from the lower level during the day.  At a minimum, he would traverse the stairs six times per day.  The stairs were without defect and consisted of ten steps to a landing and an additional ten steps to ground level.  At the time of the accident, he was returning to the lower level locker room, when his knee gave out after three steps, causing him to fall seven stairs to the landing below.  He injured his back and right knee.  A denial of the right knee injury was not presented to the appellate court.

The appellate court noted the two types of risks involved in this case: risk personal to the employee and neutral risk.  The weak knee is a personal risk.  The stairs are a neutral or common risk.  The court found six times per day use was sufficient to expose the employee to a “common risk” more frequently than that to which the general public was exposed.  The risk was increased on a quantitative basis because he was “continually forced to use the staircase” by his employer for his personal comfort and for work-related activities.    The court also noted that the employer knew of the prior knee injury but placed him in a position of an increased risk based on a quantitative analysis.  The risk was no longer neutral because of the frequency (repetitiveness) with which the claimant was required to traverse the stairs with his known weak knee.

This appears to create a new exception to the general rule of non-compensability for personal risk in an area of neutral risk where the employer has knowledge of the claimant’s pre-existing condition or weakness.   Of course, this not only expands the compensability of fall down cases, but brings into question where (how many times per day) is the quantitative line drawn and what action should be taken when the employer has “knowledge” of the pre-existing condition or weakness.   Apparently, judicial activism on the part of the appellate courts to expand compensability is alive and well.