Illinois General Assembly - Full Text of SB2041
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Full Text of SB2041  102nd General Assembly




State of Illinois
2021 and 2022


Introduced 2/26/2021, by Sen. Donald P. DeWitte


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".

LRB102 04490 JLS 14509 b





SB2041LRB102 04490 JLS 14509 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
23some or all of the cost thereof. This exclusion shall not apply



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1in the event that the injured employee was ordered or assigned
2by his employer to participate in the program.
3    Notwithstanding any other defense, accidental injuries
4incurred while the employee is engaged in the active
5commission of and as a proximate result of the active
6commission of (a) a forcible felony, (b) aggravated driving
7under the influence of alcohol, other drug or drugs, or
8intoxicating compound or compounds, or any combination
9thereof, or (c) reckless homicide and for which the employee
10was convicted do not arise out of and in the course of
11employment if the commission of that forcible felony,
12aggravated driving under the influence, or reckless homicide
13caused an accident resulting in the death or severe injury of
14another person. If an employee is acquitted of a forcible
15felony, aggravated driving under the influence, or reckless
16homicide that caused an accident resulting in the death or
17severe injury of another person or if these charges are
18dismissed, there shall be no presumption that the employee is
19eligible for benefits under this Act. No employee shall be
20entitled to additional compensation under Sections 19(k) or
2119(l) of this Act or attorney's fees under Section 16 of this
22Act when the employee has been charged with a forcible felony,
23aggravated driving under the influence, or reckless homicide
24that caused an accident resulting in the death or severe
25injury of another person and the employer terminates benefits
26or refuses to pay benefits to the employee until the



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



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



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1grams of alcohol per 100 milliliters of blood. Percentage by
2weight of alcohol in the breath shall be based upon grams of
3alcohol per 210 liters of breath. Any testing that has not been
4performed by an accredited or certified testing laboratory
5shall not be admissible in any hearing under this Act to
6determine whether the employee was intoxicated at the time the
7employee incurred the accidental injury.
8    All sample collection and testing for alcohol and drugs
9under this Section shall be performed in accordance with rules
10to be adopted by the Commission. These rules shall ensure:
11        (1) compliance with the National Labor Relations Act
12    regarding collective bargaining agreements or regulations
13    promulgated by the United States Department of
14    Transportation;
15        (2) that samples are collected and tested in
16    conformance with national and State legal and regulatory
17    standards for the privacy of the individual being tested,
18    and in a manner reasonably calculated to prevent
19    substitutions or interference with the collection or
20    testing of reliable sample;
21        (3) that split testing procedures are utilized;
22        (4) that sample collection is documented, and the
23    documentation procedures include:
24            (A) the labeling of samples in a manner so as to
25        reasonably preclude the probability of erroneous
26        identification of test result; and



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1            (B) an opportunity for the employee to provide
2        notification of any information which he or she
3        considers relevant to the test, including
4        identification of currently or recently used
5        prescription or nonprescription drugs and other
6        relevant medical information;
7        (5) that sample collection, storage, and
8    transportation to the place of testing is performed in a
9    manner so as to reasonably preclude the probability of
10    sample contamination or adulteration; and
11        (6) that chemical analyses of blood, urine, breath, or
12    other bodily substance are performed according to
13    nationally scientifically accepted analytical methods and
14    procedures.
15    The changes to this Section made by Public Act 97-18 apply
16only to accidental injuries that occur on or after September
171, 2011.
18(Source: P.A. 101-6, eff. 5-17-19.)