Up in Smoke?

Russ Haugen

The effect of recreational marijuana on Illinois Workers’ Compensation claims.

As of January 1, 2020, the consumption and sale of marijuana for nonmedicinal purposes became legal.  Illinois was the 11th state in the nation to legalize the use of recreational marijuana.  The law allows all Illinois adults aged 21 and older to possess up to 30 grams of the cannabis flower or up to 500 milligrams of THC for cannabis-infused products.  In addition to the restrictions on the amount an individual can possess, there are clear restrictions on where you can consume it.  Any person or business can prohibit the use of marijuana on private propertyThe use of recreational marijuana is also specifically prohibited:

  • In any public place, such as streets or parks;
  • In a motor vehicle;
  • On school grounds, with the exception of medical users;
  • Near someone under the age of 21; or
  • Near an on-duty school bus driver, police offer, firefighter, or corrections officer.

As stated above, employers can choose to maintain a “drug-free workplace” and restrict all their employees from marijuana (medicinal marijuana and/or recreational marijuana) use.  As such, provided that it is applied in a nondiscriminatory manner, employers can require an employee to undergo a drug test following a work injury.  If an employee tests positive for drug use or refuses to take the drug test following a work accident, there is a rebuttable presumption that the employee was intoxicated, and that the intoxication was the proximate cause of the injury.

Can I still pursue a workers’ compensation claim with a positive drug test?

The simple answer is YES.  However, if you have a positive drug test following a work accident, your employer will likely deny your claim for benefits under the Illinois Workers’ Compensation Act.  The Illinois Workers’ Compensation Act says there is a “rebuttable presumption” which means that you can present evidence to defeat the presumption that you were intoxicated at the time of the work injury.  Therefore, even with a positive drug test, you can still pursue a workers’ compensation claim.

The evidence that will be required to overcome the presumption is different in every case.  Here are a few examples of questions that need to be asked to determine if the employer’s intoxication defense is valid:

  • What time did the accident occur during your workday?
  • Were you working alongside anyone before or at the time of the accident?
  • What, if any, job tasks were you able to accomplish prior to the work accident?
  • Did you have any conversations or interactions with a supervisor prior to the accident?
  • What is the concentration level of the positive drug test?

This evidence needs to be gathered at the outset of the claim.  Therefore, it is important to contact a skilled workers’ compensation attorney immediately following a work injury.  The attorneys at Woodruff Johnson & Evans will know how to investigate the claim and secure the appropriate evidence needed to rebut the presumption. 

Can my employer terminate me after a positive drug test?

Yes, but that does not defeat your workers’ compensation claim.  If your employer has policies in place and can show that these policies are applied in a nondiscriminatory manner, it is possible for your employer to terminate you for failing to adhere to their zero-tolerance or drug-free workplace policies.  However, even if you are terminated after a work injury for having a positive drug test, you still may be entitled to worker’s compensation benefits including lost wages and medical benefits.

As such, having a legal team to assist you in pursuing workers’ compensation benefits in this situation is highly recommended.  If you have any questions or would like a free consultation, please do not hesitate to contact Woodruff Johnson & Evans law offices.

Consult an attorney to make sure you are adequately being protected. Call us at (630) 585-2320 or contact us online to schedule a no-cost, no-obligation consultation today.


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