State of Illinois
2013 and 2014


Introduced 1/10/2013, by Rep. Dwight Kay


820 ILCS 305/11  from Ch. 48, par. 138.11

    Amends the Workers' Compensation Act. Provides that an employee may overcome the rebuttable presumption that intoxication was the proximate cause of an injury by the preponderance of admissible evidence that intoxication was not the proximate cause (rather than the sole proximate cause or proximate cause) of the accidental injuries.

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HB0113LRB098 03000 KTG 33015 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. The compensation herein provided, together with
8the provisions of this Act, shall be the measure of the
9responsibility of any employer engaged in any of the
10enterprises or businesses enumerated in Section 3 of this Act,
11or of any employer who is not engaged in any such enterprises
12or businesses, but who has elected to provide and pay
13compensation for accidental injuries sustained by any employee
14arising out of and in the course of the employment according to
15the provisions of this Act, and whose election to continue
16under this Act, has not been nullified by any action of his
17employees as provided for in this Act.
18    Accidental injuries incurred while participating in
19voluntary recreational programs including but not limited to
20athletic events, parties and picnics do not arise out of and in
21the course of the employment even though the employer pays some
22or all of the cost thereof. This exclusion shall not apply in
23the event that the injured employee was ordered or assigned by



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1his employer to participate in the program.
2    Notwithstanding any other defense, accidental injuries
3incurred while the employee is engaged in the active commission
4of and as a proximate result of the active commission of (a) a
5forcible felony, (b) aggravated driving under the influence of
6alcohol, other drug or drugs, or intoxicating compound or
7compounds, or any combination thereof, or (c) reckless homicide
8and for which the employee was convicted do not arise out of
9and in the course of employment if the commission of that
10forcible felony, aggravated driving under the influence, or
11reckless homicide caused an accident resulting in the death or
12severe injury of another person. If an employee is acquitted of
13a forcible felony, aggravated driving under the influence, or
14reckless homicide that caused an accident resulting in the
15death or severe injury of another person or if these charges
16are dismissed, there shall be no presumption that the employee
17is eligible for benefits under this Act. No employee shall be
18entitled to additional compensation under Sections 19(k) or
1919(l) of this Act or attorney's fees under Section 16 of this
20Act when the employee has been charged with a forcible felony,
21aggravated driving under the influence, or reckless homicide
22that caused an accident resulting in the death or severe injury
23of another person and the employer terminates benefits or
24refuses to pay benefits to the employee until the termination
25of any pending criminal proceedings.
26    Accidental injuries incurred while participating as a



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



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1breath, or urine at the time the employee incurred the
2accidental injury shall be considered in any hearing under this
3Act to determine whether the employee was intoxicated at the
4time the employee incurred the accidental injuries. If at the
5time of the accidental injuries, there was 0.08% or more by
6weight of alcohol in the employee's blood, breath, or urine or
7if there is any evidence of impairment due to the unlawful or
8unauthorized use of (1) cannabis as defined in the Cannabis
9Control Act, (2) a controlled substance listed in the Illinois
10Controlled Substances Act, or (3) an intoxicating compound
11listed in the Use of Intoxicating Compounds Act or if the
12employee refuses to submit to testing of blood, breath, or
13urine, then there shall be a rebuttable presumption that the
14employee was intoxicated and that the intoxication was the
15proximate cause of the employee's injury. The employee may
16overcome the rebuttable presumption by the preponderance of the
17admissible evidence that the intoxication was not the sole
18proximate cause or proximate cause of the accidental injuries.
19Percentage by weight of alcohol in the blood shall be based on
20grams of alcohol per 100 milliliters of blood. Percentage by
21weight of alcohol in the breath shall be based upon grams of
22alcohol per 210 liters of breath. Any testing that has not been
23performed by an accredited or certified testing laboratory
24shall not be admissible in any hearing under this Act to
25determine whether the employee was intoxicated at the time the
26employee incurred the accidental injury.



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1    All sample collection and testing for alcohol and drugs
2under this Section shall be performed in accordance with rules
3to be adopted by the Commission. These rules shall ensure:
4        (1) compliance with the National Labor Relations Act
5    regarding collective bargaining agreements or regulations
6    promulgated by the United States Department of
7    Transportation;
8        (2) that samples are collected and tested in
9    conformance with national and State legal and regulatory
10    standards for the privacy of the individual being tested,
11    and in a manner reasonably calculated to prevent
12    substitutions or interference with the collection or
13    testing of reliable sample;
14        (3) that split testing procedures are utilized;
15        (4) that sample collection is documented, and the
16    documentation procedures include:
17            (A) the labeling of samples in a manner so as to
18        reasonably preclude the probability of erroneous
19        identification of test result; and
20            (B) an opportunity for the employee to provide
21        notification of any information which he or she
22        considers relevant to the test, including
23        identification of currently or recently used
24        prescription or nonprescription drugs and other
25        relevant medical information;
26        (5) that sample collection, storage, and



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1    transportation to the place of testing is performed in a
2    manner so as to reasonably preclude the probability of
3    sample contamination or adulteration; and
4        (6) that chemical analyses of blood, urine, breath, or
5    other bodily substance are performed according to
6    nationally scientifically accepted analytical methods and
7    procedures.
8    The changes to this Section made by Public Act 97-18 apply
9only to accidental injuries that occur on or after September 1,
11(Source: P.A. 97-18, eff. 6-28-11; 97-276, eff. 8-8-11; 97-813,
12eff. 7-13-12.)