Synopsis: As JB Pritzker settles in at the Governor’s Mansion in Illinois, the Winds of Change are picking up at the Workers’ Compensation Commission.

Editor’s Comment: The 2011 changes to the Workers’ Compensation Act, followed by the tenure of former Republican Governor Bruce Rauner, moved the IL WC Commission from a highly Petitioner-oriented venue to one where most practitioners felt it had become, for the most part, a fair ruling body. This is a matter of perspective, of course.

We are able to happily report the IL WC system is in the middle of the pack in terms of both costs of WC and benefits being paid to injured workers when you take a look at the State of Oregon WC ranking of insurance premiums. We hope our system stays in the middle and doesn’t dramatically rise, as it did under the administrations of prior years. Looking at the personnel changes that have occurred, we don’t feel that it will.

Under the Rauner administration, some Petitioner attorneys felt the IL WC Commission moved beyond center, at times even turning Respondent-oriented in their posture of adjudication in recent years. Regardless of one’s perception of the last few years, most veteran observers predict the pendulum is now going to swing back; how far remains to be seen.

Keep in mind that a number of current IL WC Arbitrators are on “ice” if you will, awaiting their fate as to re-appointment. As an Illinois-based law firm dedicated to defending workers’ compensation claims in this State, we only hope that the remaining (and new) hearing officers maintain the level of even-handed adjudication that we have experienced in recent years.

Thus far, a memorandum from the Illinois Workers’ Compensation Commission directed:

Commissioner Michael Brennan has been appointed as Chairman of the Workers’ Compensation Commission.
Arbitrators Flores and McCarthy are appointed Commissioners
Their dockets will be replaced by TBA1 and TBA2 respectively
Arbitrator Watts will replace the Chicago TBA

New Commissioners & Panels:

Panel A Panel B Panel C

Employee Representatives: Commissioner Tyrrell Commissioner McCarthy Commissioner Parker

Public Representative: Commissioner Portela Commissioner Mathis Commissioner Flores

Employer Representatives: Commissioner Lamborn Commissioner Coppoletti Commissioner Simpson

Newly appointed Chairman Michael Brennan replaces Joann Fratianni-Atsaves. We consider Mr. Brennan to be highly qualified for the position, as he was in private practice as a workers’ compensation defense attorney for a number of years before serving as a Commissioner for the last few years. He is well-versed in Illinois Workers’ Compensation Law. Both sides of the bar find him to be a solid choice to lead the IWCC. We extend our thanks to former Chairperson Fratianni-Atsaves for her hard work in service of our State.

New Commissioners Douglas McCarthy and Barbara Flores served as arbitrators prior to their Commission appointments; they are familiar to practitioners and veterans of the industry.

New Commissioner Maria Portela served as in-house counsel at AIG prior to her appointment.

New Commissioner Marc Parker managed his own Plaintiff/Petitioner practice in Madison Country before his appointment.

If compelled to wager, we predict further replacements of current sitting arbitrators, to be directed by the new Governor. This is unfortunate, as the vast majority of current arbitrators have done a solid job in recent years. To the victor goes the spoils though, especially in Illinois, and the Governor has discretion to make appointments as he sees fit. We will report on further re-appointments or new appointments as they occur.

This article was researched and written by John P. Campbell Jr., J.D., Partner at Keefe, Campbell, Biery & Associates, LLC. John can be reached at jcampbell@keefe-law.com. We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: What Will Employers Do When Marijuana Becomes “Legal” in Illinois and Other States?

Editor’s comment: We note Dr. David Fletcher of SafeWorks Illinois was quoted in an article on this topic over the weekend and I wanted to add my thoughts. In my opinion, employers are best served to create/maintain drug and alcohol-free workplaces. But one issue with doing so is testing for marijuana levels. There are no current tests that allow an employer to determine the current THC or marijuana levels in one’s system—the testing only indicates the presence of the drug and not its particular level of “intoxication” for a user. Watch this space if that should change.

The reality of legalization in Illinois and other states, if it happens, will be challenging. Some employers might start ignoring employee use, as long as workers can still do their jobs. Other employers will still ban its use, taking action against employees who test positive for pot, bolstered by federal law under which marijuana remains illegal.

Please note risk and exposures for injuries are, in my personal view, much higher in companies that either actively or passively allow marijuana use in their work sites. If an employee is injured while stoned at work, I feel it will be harder to defend a claim saying pot-smoking was the cause. In the realm of third party liability, I think it will be easier for Plaintiff lawyers to seek high damages or punitive damages if a worker injures a third party while under the influence of marijuana.

Illinois’ new governor, J.B. Pritzker strongly supports the legalization of marijuana, and Illinois lawmakers in our “one-party” State plan to consider legislation this year. If the IL legislature and our Governor want marijuana legal, there is no way to stop that, other than public opinion. If marijuana is legalized, Illinois would join 10 other states, and the District of Columbia. We note medical marijuana is already legal in Illinois.

All of it means employers will face a new set of questions.

Should you ban possession of marijuana in the workplace?
Should you/can you fire employees who test positive for marijuana?
Should they continue testing current and prospective workers at all?

If rules surrounding medical marijuana are any indication, Illinois workers won’t necessarily be free to use marijuana, even in their free time, if recreational marijuana becomes legal here. Illinois law bars employers from discriminating against workers for using legal products outside the workplace. But employers still have the right to have drug-free workplace policies, require drug testing and to take job action to suspend or terminate employees who violate those policies.

Please note any company or organization that contracts with the federal government would also still likely have to bar marijuana use among employees. And U.S. transportation workers in safety-sensitive positions would also

still likely be subject to drug and alcohol testing, per federal requirements.

Some employers have already made that change following the legalization of medicinal marijuana in Illinois, the widespread use of CBD oil and potential legalization of recreational marijuana, said Dr. David Fletcher, CEO and founder of SafeWorks Illinois in Champaign, which does drug testing for employers. “We’ve actually had some employers say they don’t want to test for it,” Fletcher said. “That’s kind of the new trend.”

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

Synopsis: Update on IL SB 1596.

Editor’s comment: I received an excellent article indicating the changes proposed in IL SB 1596 may not be effective until year 2044 due to a constitutional issue of longstanding nature.

If you are concerned about the business-busting aspects of this new proposed but misguided legislation and want to review that article, I am happy to send it. Please simply send a reply.

KCBA Blog

4-1-2019; The Winds of Change--New Team at the IWCC Under Gov JB Pritzker; What Will Employers Do When Marijuana Becomes “Legal” in Illinois and Other States and more