Synopsis: When Will IL Have Our First WC Pregnancy? Can IL Possibly Extend Our Generous WC and OD Benefits to Folks Who Aren’t Working?

Editor’s comment: We were discussing the “Traveling Employee” Trilogy of controversial IL WC rulings in Venture-Newberg, Mlynarczyk and Kertis that IL Business observers feel is going to expand global, all-day, don’t-have-to-be-on-the-clock WC coverage to the unprecedented judicially created definition of “traveling employees” at a webinar last week. One of our participants asked “what do we mean by global coverage?” What we realized is this outlandish new legal concept is going to expand both WC or accident coverage to “traveling employees” along with OD or occupational disease coverage.

If you are aren’t sure, Illinois has two parallel acts to protect workers, the Illinois Workers’ Compensation Act and the Illinois Occupational Disease Act. The two legislative works are closely parallel and have minimal differences. If one is covered under the IL WC Act, you are similarly covered under the IL OD Act. Assuming the IL Supreme Court doesn’t get to consider and then flip these rulings, and Mlynarczyk wasn’t sent to the them and has already gone final and benefits have been paid, we are going to see the following scenario:

· Traveling employee = now means anyone with a job who

o Doesn’t work on the “premises of their employer” or

o Anyone who works at the premises of their employer but occasionally travels to two or more “premises” a la Kertis or

o Workers where “traveling” is an essential part of the job.

· This new judicially created definition encompasses millions of IL workers who are now covered under WC/OD when off work. Please understand the three appellate rulings confirm “traveling” has nothing to do with the definition of “traveling employee” status. One becomes a “traveling employee” if you match one or more of the three definitions above per these three rulings. If you don’t understand this concept, please send a reply. If you are reading other IL WC publications that say a “traveling employee” injury was work-related due to travel status, we feel they aren’t being forthcoming and are propagating confusion.

· WC/OD global all-day/all-night coverage of any risk, injury or illness may now exist in this state for any worker who attains “traveling employee” status = this means any “reasonable and foreseeable” activity or risk from the moment they leave their home until the moment they return home. For “at home” workers, we think they are arguably covered 24/7/365. This is going to provide IL business strong incentive to have their “at home” workers move out of our state or hire “at home” workers outside our state. If you aren’t sure why, send a reply.

· Please note there was no question and it was wholly agreed by both sides Claimant Ronald Daugherty in Venture-Newberg and Claimant Stanislawa Mlynarczyk from the Mlynarczyk ruling were not on the clock, not being paid and not performing any work for their employers at the time of injury. They were on personal time and should have been at their own risk. The Court ruled WC/OD coverage for Claimant Ronald Daughtery was 24/7/365 for his entire trip to Cordova, IL and its surroundings; he would have been covered all day + all night whether working or not.

· We assert the judicially created and blurring definition of “reasonable and foreseeable” activity/risk to cover about 99.9% of everything a human does—in short, “traveling employees” are globally covered for accidents/illnesses all day for all activities inside and outside their home.

· Isn’t it a “reasonable and foreseeable” activity or risk to get a disease, any disease from the time you leave your home until you return?

· Wouldn’t pregnancy, cancer, adult-onset diabetes, flu, common cold, menstrual cramps, HIV, heart disease, obesity (which is now a disease), liver failure, gall stones and you-name-it-disease-or-other-medical-condition all come from formerly personal but now all work-related risks associated with “reasonable and foreseeable” activity away from home for “traveling employees?” While we are cautious when characterizing pregnancy as an occupational illness—you have to admit pregnancy can cause a level of temporary disability from heavy jobs and it is a medical condition that would typically occur during personal time that our courts have now mystically made a part of “work.” Isn’t it going to become a little pricey to have to pay 100% of all medical care and lost time for hundreds of personal medical conditions? Who needs Obamacare in Illinois if you have a “traveling employee” job?

· If every “traveling employee” is covered under the IL WC and OD Acts as a matter of law from the moment they leave their home to the moment they return at the end of the day, how hard will it be for a worker to claim “I must have caught the [insert disease] away from home because no one in my home has this condition.” How will anyone ever defend that claim?

· Again, Claimant Mlynarczyk or anyone like her could have gone home for lunch and while on her own time had a romantic encounter and become pregnant. As there is no question our lower court has ruled she was a “traveling employee,” isn’t such conduct both “reasonable and foreseeable?” If she did so, would medical bills and time lost from work have been the responsibility of her employer? From the perspective of her employer and its insurer, how is that liability any different than her falling in her own driving and breaking her wrist on her own property and on her own time?

Is The “Traveling Employee” Concept Good For IL Employers?

In our view, it is an unmitigated disaster. For our readers who noted the IL WC advisory rates were again confusingly recommended to drop, we point to actual premiums and the State of Oregon every-other-year listing of U.S. WC premiums. From years 2004 to 2010, IL WC/OD premiums ascended from ranking number 24 in the U.S. in 2004 to number 3 by 2010. At the time, we didn’t include WC/OD coverage for millions of workers on personal time and risk. We do now.

Is that going to cause WC/OD premiums to spike? Well, try to remember the employer in Venture-Newberg wouldn’t owe Claimant Daugherty a penny in any other state in the United States—he never made it to work that day and was 20 miles away when injured! Right now, over $1M in medical bills are due and have been awarded by the lower court. No state that we are aware of provides global all day/all night WC/OD coverage for injuries and illnesses. If this claimant passes away from his injuries now or in the future, the value of the IL/WC death benefit is over $1.7M! All IL employers are now on the risk for any “traveling employee” for cigarette smokers who get lung and brain cancer—they are all going to claim they smoked at work and that it is a “reasonable and foreseeable” activity invoking this new OD coverage. It won’t be much of a jump for heart problems, lung dysfunction, liver, pancreatic concerns and lots of other diseases to all be covered under the wildly expanded IL WC/OD coverage. For anyone that passes from them, the death benefit runs from $600K-$1.7M. If you aren’t sure IL WC/OD rates are going to rise, we are certain, absolutely certain they are going to skyrocket. Please don’t shoot the messenger but we are certain of it. We are going to be the worst or highest state in the U.S. within three-four years. Illinois unemployment is over 9% and this isn’t a good sign for employers to start hiring in our state.

Is the “Traveling Employee” Concept Good for Lawyers on Both Sides and the IWCC?

As we have advised in the past, we also consider it an unmitigated disaster. Litigation isn’t going to be required for globally covered “traveling employees”—coverage for these risks, injuries and illnesses are automatic; the “Traveling Employee” Trilogy confirms WC/OD coverage is “as a matter of law.” Therefore all the worker has to do is demonstrate “traveling employee” status which shouldn’t be challenging. We are confident underwriters at all the major carriers will create a handy list of workers with those positions and once they look at the list, WC/OD insurance adjusters are simply going to pay and pay and pay. The adjusters will tell the worker they don’t need and will only waste money to get a lawyer.

If WC/OD coverage is a lock and benefits are due and there is nothing to litigate, we won’t need the IWCC.

What Should We Do About It?

This is a great question we are asking you, our readers. Here are unedited thoughts as written in response to the question by one of our top clients:

All companies in the transportation business are now going to have accept responsibility for the employee from the point they leave their home to the point they return, regardless if they stop at a local bar on their way home, have a few, get into an accident, fall down and hit their head, get run over by another bar customer, all going to become our responsibility under w/c. Really? How do we control how an employee drives from home to work? What an employee eats, how they sleep, their employee’s extracurricular activities. They buy a cup of coffee on the way to work and spill it on themselves and are burned-workers’ comp? They get hit with a fly ball at their kid’s baseball game and didn’t go home first-workers’ comp? Do we need to now start controlling our employees’ lives outside of their working hours? Next they are going to make us pay them from the time they leave their house and back. Who makes this stuff up and who is thinking it through? Do they realize the implications? This state is driving employers out and this is going to make employers put the pedal down.

Please remember in 2011, the IL legislature restated the requirement that injuries and illnesses “arise out of” and occur “in the course of” the employment. In our view, the IL reviewing courts are ignoring that simple requirement of WC/OD law. If you disagree, please understand there is no chance, literally none the unfortunate injuries suffered by Claimant Daugherty in Venture-Newberg were “in the course of”—all sides agree he was twenty miles away from work and wasn’t on the clock when the car crash occurred.

Our vote is to get a petition together or start writing letters to Governor Quinn, Speaker Madigan, Senate President Cullerton, Attorney General Lisa Madigan and IL Supreme Court Chief Justice Thomas Kilbride. We hope business leaders like Doug Oberhelman at Caterpillar and Doug Whitley at the IL State Chamber and David Vite of the IL Retail Merchants get engaged. We would love to hear Chairman Michael Latz and the IWCC itself make a stronger statement about their approach to this crisis that clearly will affect their jobs and their lives. If you don’t use KCB&A as your defense attorneys, please ask your IL WC defense lawyer for their thoughts, recommendations and actions to block this new legal concept.

The defense team at Keefe, Campbell, Biery & Associates seeks your thoughts, assistance and concerns in this legal crisis that threatens our system and our state. Please reply as you feel best. Please feel free to post comments on our award-winning blog. We thank our brilliant client/reader quoted above for her thoughts.

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Synopsis: Getting and Keeping Drugs and Alcohol Out of Your Workplace.

Editor’s comment: After our recent article about medical marijuana becoming somewhat legal, we have had a lot of readers inquire about drug and alcohol testing and wanted to provide additional thoughts for your consideration.

Employers can test in

A. Pre-employment,

B. Random,

C. Reasonable suspicion and

D. Post-accident settings.

A. Pre-employment testing is a great way to start your overall program and confirm for any job candidate that you are serious about safety and keeping your workplace drug and alcohol free.

In short order, pre-employment testing means all job applicants in a class of workers may be required to be screened for drug and alcohol use prior to being hired. Prospective employees may be tested for drugs or alcohol in the workplace.

The types of drug tests which show the presence of drugs or alcohol include urine drug tests, blood drug tests, hair drug tests, breath alcohol tests, saliva drug screen, and sweat drug screen. Hiring should be contingent upon passing pre-employment drug and alcohol tests and screenings. Drug testing laws vary by state. In some cases, the law requires drug testing. For example, industries regulated by U.S. Government may be covered by federal or state drug testing requirements.

Breath alcohol testing devices or breathalyzers measure how much alcohol is currently in the blood. Blood alcohol tests show current levels of impairment or intoxication; they do not show past use. A blood drug test may be used when job applicants or employees are screened for illegal drugs. A blood test measures alcohol or drugs in the blood at the time the blood is drawn. Drugs screened for in a typical blood test for employment purposes include amphetamines, cocaine, marijuana, methamphetamines, opiates, nicotine, and alcohol. A hair drug test provides a 90-day window of drug use. It doesn’t indicate current impairment due to drugs, only past use. A hair drug test does not detect alcohol use. Hair can be tested for cocaine, marijuana, opiates, methamphetamine, and phencyclidine. A mouth swab drug test, also known as a saliva test or oral fluids test, collects saliva from inside the job applicant or employee's mouth. The saliva is tested for use of drugs during the previous few hours up to one to two days. Saliva is easy to collect and test, so this is the simplest and least invasive type of drug testing. A urine drug test is the most commonly used test when job applicants or employees are screened for illegal drugs or alcohol use. Urinalysis shows the presence of drug residues that remain in the body after the effects of the drug have worn off.

B. Random testing is exactly that – systematic and random testing of existing workers.

One approach is all employee names from a class of workers are entered into a computer system and the computer selects those to be tested. The computer needs a unique identifier, such as an SSN or employee ID #, the frequency of testing (monthly, quarterly, etc), and the percentage of the employee population to test through the yearly program (25%, 50% etc). For DOT testing, the percentages are required and set by the operating administration regulating the employer, such as the FMCSA or FAA. For non-DOT testing, the employer has to make decisions regarding which employee categories to include in the random pool, the frequency of testing, and the percentage of the employees to be selected for testing. Computer generation of the folks to be selected is important so there is a system to produce unbiased random selections of personnel subject to drug and alcohol testing.

Simple random sampling without replacement is not usually used in random testing programs designed to deter or identify drug use. When an employee is subject to testing only once during the year, there may be no deterrent or no chance of identifying a drug user for the rest of the year. Most random drug testing programs use SRS or sampling with replacement; all employees in the pool are eligible for selection each time a selection is made. Employees may be chosen more than once in a year and sometimes in consecutive selection periods. This can be aggravating to employees who have already been selected previously and passed the drug test; however, it is necessary for true random testing designed to both deter illegal drug use and identify substance abusers. In our view, systematic and random testing can work if you want it to; it has proven to be an effective tool in reducing or eliminating substance abuse in the workplace. Once notified of being selected for a random test, an employee should immediately report for that test. Any delay takes the random part out of the equation and permits adulteration or substitution. What makes the test successful as a deterrent is the fact the employee does not know they have been selected until they are required to submit a specimen.

C. Reasonable suspicion testing is conducted when a supervisor has reasonable cause to believe an employee may be impaired as a result of drug or alcohol use.

The supervisor's assessment and decision to test is based on personal observation of the employee's behavior. Supervisors should document in writing the behaviors that give rise to the suspicion the employee is impaired and/or under the influence of drugs and/or alcohol. For overall workplace safety, reasonable suspicion drug testing is a valuable aid if it is properly used and carefully documented. Training for determining reasonable suspicion of impairment and the process to refer an employee for a drug or alcohol test is readily available. Large employers have EAP programs that include access to this type of training; in addition, trainers can be brought in to provide this training. Smaller employers can take advantage of on-line or video training options. This issue revolves around the safety of the employee, their coworkers, customers, and the general public – it is not so much about the test itself. Without question, reasonable suspicion testing has probably the highest level of legal liability due to the initial decision by a supervisor on when to test or not test.

D. Post-accident testing is also fairly simple to grasp.

Anyone who is involved in an accident is tested, either by the care providers at your request or by your team. It is important to remember if you test one employee in a post-accident setting, test all. If you don’t follow that rule, you are almost certain to get sued. The easiest way for test results to be obtained is to advise your PPP network providers to always test in post-accident settings and properly preserve the samples.

It is legally important to properly categorize a drug or alcohol test. If you need a sample drug and alcohol testing program, send a reply and we will forward it for free. If you need legal assistance in setting up a program, let us know. Please give us your thoughts and comments or post them on our award-winning blog.

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Synopsis: Driving in IL Has Changed—A Lot!!

Editor’s comment: While not truly a WC issue, we want our readers to know of the many changes, in case you are in or visit our state.

ü No more phones to your ear!! Starting January 1, 2014, if you are driving and put a cell phone to your ear and get caught, it will result in fines of $75 to $150.

ü Don’t use your cell phone and crash into anything! Another law increases penalties for drivers who cause an accident while using an electronic device to talk/text or email, including possible prison time. Current law only allows these drivers to be charged with traffic violations.

ü Cellphones off around accidents! Can’t take pix, text or talk on a mobile phone while driving within 500 feet of an emergency scene, such as a traffic accident or responding firefighters or police. We have no idea what rocket scientist thought this one up or why it was passed but it is a law you should know about.

ü No more hot rodding, sort of—A conviction of going 30mph over the limit on a highway and 25mph over the limit not on a highway will result in a sentence that cannot include court supervision. We assume this will mean more jail time or license suspensions.

ü New access to past driving records--Sentencing for traffic offenses will now include real-time access to online databases for all states to allow judges to throw the book at us.

ü Rural speed limits to go up to 70mph—Since everyone is already driving 80mph, it is nice to see the law catch up to the rest of us. Cook County and the collar counties can nix the increase if they want but all other counties are now at 70mph.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

KCBA Blog

11-26-13; When Will IL Have Its First WC Pregnancy?; Four Kinds of Drug/Alcohol Tests Compared; New Driving Laws for IL WC Participants and much more