Monday, July 23, 2012 3:02 PM

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Subject: IWCC Proposed Rules For Drug TestingDate: Monday, July 23, 2012 2:31 PM Jul 23From: Joe Garofalo <jgarofalo@gshslaw.com>To: bhart@gshslaw.comConversation: IWCC Proposed Rules For Drug Testing

Dear Friends,

The Illinois Workers' Compensation Commission has finally published a proposed Rule governing thecollection and testing of samples for alcohol and other drugs that may form the basis for an employer’sdefense to a claim for workers’ compensation benefits due to an employee’s intoxication. The Commissionwill be taking comments on this proposed Rule through July 30, 2012.

Matt Novak has prepared a wonderful synopsis of the proposed Rule which is contained below. As you willsee from his article, strict compliance with the Rule will be necessary in order to introduce the results ofalcohol and drug testing into evidence. In light of the onerous requirements to admit such evidence werecommend that most employers NOT engage in the alcohol and drug collection process themselves butinstead contract with outside firms who are already engaged in this process as their main business and whoare in compliance with these requirements. For those employers who are already performing such testing andintend to continue to do so on site, please note that it will be essential to comply with the rules for collectionor testing or else the test results will not be admissible in evidence.

Please feel free to contact us with any questions or comments you may have regarding this matter.

Sincerely yours,

Joe Garofalo

COMMISSION PROPOSES RULES FOR DRUG TESTING

As many of our readers may know, the most recent amendments to the Illinois Workers’ Compensation Act amend Section11 to establish an employee’s intoxication as a potential defense against liability for injuries sustained in a work accident. This amendment, which became effective June 28, 2011, charged the Illinois Workers’ Compensation Commission (the“Commission”) with developing rules for sample collection and testing for alcohol and other drugs that could be consideredintoxicating substances. On June 15, 2012 the Commission published its proposed rules governing the collection andtesting of samples for alcohol and other drugs. Please note that there is a comment period during which time interestedparties can provide their thoughts or opinions on the proposed rules, which closes forty-five days after the date ofpublication, or July 30, 2012. Interested parties should contact Kimberly B. Janas, the Secretary of the Commission, withtheir comments before the close of time period. Her information is as follows:

Illinois Workers’ Compensation Commission

100 West Randolph Street, Suite 8-200

Chicago, Illinois 60601

PH: (312) 814-6559

FAX: (312) 814-3520

k.janas@illinois.gov

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k.janas@illinois.gov

The proposed rules are thirty-one pages in length, and cover in detail the process and procedure of collecting differenttypes of specimens and conducting tests to establish intoxication by alcohol or other substances. What follows is a briefsummary of the proposed rules and some of the possible ways it may affect administering and defending workers’compensation claims in Illinois.

CHAIN OF CUSTODY FORM

After a section outlining the definitions of various terms used in the proposed rules, Proposed Rule 9140.10 creates a“Chain of Custody Form” to be used in the collection of blood and urine specimens. It is not indicated whether theCommission will publish this Chain of Custody Form, or if employers, insurance carriers or medical providers will need todevelop and publish their own forms independently. This rule indicates the Chain of Custody Form must have foursections, with each section having specific informational requirements to be completed by the various parties participatingin the specimen collection and testing process. The rule also provides that there needs to be seven copies of the Form,and that the parties involved in the collection and testing process must keep a copy of the Form for a minimum of twoyears. The rule specifically states that the Chain of Custody Form must include all of the information specified within therule. This is a mandatory requirement, and the use of any non-complying form, or the failure of a party to properly completea form, could result in the test results being excluded from evidence at trial. While the use of a non-complying Form shouldnot be an issue of the Commission creates and provides a Chain of Custody Form for parties to utilize, the use of a privatelycreated form could cause issues by failing to comply with the rule.

COLLECTION OF BLOOD AND URINE SAMPLES

Proposed Rules 9140.20 and 9140.30 govern the collection procedures for specimens of blood and urine, respectively. Only certain medical personnel, such as a licensed physician or a registered nurse, are allowed perform the collection ofblood specimens under the rules. Urine collection can be done not only by certain medical personnel, but also by a personmeeting the training requirements of United States Department of Transportation’s training requirements as specified in theCode of Federal Regulations (49 CFR 40.33). It is conceivable that an employee of the employer could meet these trainingrequirements and serve as a urine collector, and the rules contemplate this possibility by specifically excluding anemployee’s immediate supervisor from being the collector, unless no other collector is available. The Rules establishing theprocess for collecting urine specimens are so lengthy and detailed, taking up over six pages or the rules themselves, thatwe believe it highly impractical for an employer to conduct urine collections onsite and with its own employees. Rather, webelieve employers would be best served having a designated clinic or other facility conduct its both blood and urinecollections, provided those facilities conform to the Commission’s rules. Otherwise, any failure to follow the requirements ofthe rules in the collection process may render a positive drug test result inadmissible, making an intoxication defenseimpossible.

MEDICAL REVIEW OFFICERS

Rule 9140.40 creates the process of review and verification of test results by a medical review officer (MRO). An MRO isdefined as the person meeting the qualifications set forth in the Code of Federal Regulations, 49 CFR 40.121, and cannotbe employed by the laboratory performing the testing of the relevant samples. Furthermore, an employer or a designatedemployer representative cannot serve as the MRO for his or her own employees. All test results must be sent from thelaboratory to an MRO to be reviewed and verified. When the MRO receives a positive, adulterated or a substituted resultfrom the laboratory, the MRO is required to contact the employee within seventy-two hours of receiving the test result. Thepurpose of contacting the employee is to create an opportunity for the employee to provide information that the he or sheconsiders relevant to explain a positive, substituted or adulterated test result. For example, an employee may identify forthe MRO the use of certain prescription or non-prescription medications that could have influenced the test result. If theMRO is unable to contact the employee to discuss the positive, adulterated or substituted test results, it becomes the dutyof the designated employer representative to contact the employee to have him or her contact the MRI as soon aspossible. There is no information provided as to what happens if the employee fails to contact the MRO altogether, but itwould appear that the MRO is free to verify the test results without input from the employee, and to transmit that evidence tothe employer or the designated employer representative after the seventy-two hour contact period has lapsed.

The MRO is charged with taking various steps to verify the testing results, taking particular care when the lab reports apositive, adulterated or substituted test result. The MRO is also charged with verifying and forwarding negative test resultsto the parties.

SPLIT TESTING OF URINE AND BLOOD SPECIMENS

Proposed Rule 9140.50 sets up the procedures for split testing. When an employee has a positive, adulterated orsubstituted result from the laboratory, he or she may provide a written or verbal request to the MRO to have a split

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substituted result from the laboratory, he or she may provide a written or verbal request to the MRO to have a splitspecimen undergo testing procedures. The rule states that this request must be provided within seventy-two hours orreceiving notification of a positive, adulterated or substituted test result from the MRO, unless the employee can provide alegitimate reason for his or her failure to contact the MRO within seventy-two hours.

The rule specifically states that the employer shall ensure the split specimen testing is conducted as required, which wetake to mean the employer must guaranty payment to the second laboratory for the cost of testing the split specimen. Anemployer may, however, seek repayment or reimbursement of all or part of the cost of the split specimen testing from theemployee, though an employer cannot condition performance of the split testing upon he employee’s payment of the costsassociated with the test. In the likely event that an employee refuses to pay or reimburse the employer for the costs of splittesting, perhaps the employer could claim a credit to offset the payment of benefits in an amount equal to the cost of splittesting, should the case proceed to trial.

COLLECTION AND TESTING OF BREATH AND SALIVA FOR ALCOHOL TESTING

Rule 9140.60 outlines the process of procedures of conducting testing for alcohol through both breath and saliva. The rulestates that collectors for alcohol testing must meet the training requirements set forth in 49 CFR 40.213. Again, these rulescontemplate that an employee of the employer could serve as a collector for alcohol testing.

It is important to note that any collection method used by law enforcement officers is to be considered acceptable procedurefor the collection of testing of breath and alcohol under these other proposed rules. It does state that any collection ofbreath or testing or performed by a law enforcement officer is subject to any objection pursuant to the Illinois Rules ofEvidence and statutory rules of evidence where applicable.

Alcohol testing must also be documented using a collection form, different than the Chain of Custody Form, and the rulesspecify what information must be documented in the collection form. Similar to other collection methods, the collectionprocedures for breath and saliva when testing for alcohol are specific and detailed, and the rules state that all of theprocess and procedures must be complied with. Beyond having to obtain and maintain conforming testing equipment, thetesting technician must ensure that each test is conducted in accordance with the specific procedure outlined by the rules.Therefore, unless an employer has unique or extenuating circumstances requiring immediate onsite testing, we would notrecommend an employer take upon itself the job of conducting breath or saliva testing of its employees for alcohol. Webelieve it would be better to allocate the testing process to professionals who conduct this testing process on a regularbasis to ensure that all the requirements of the rules are met, and to ensure that the positive test result is admissible athearing. Should an employer decide to engage in alcohol testing through breath or saliva analysis, careful review of thereferenced Code of Federal Regulations, as well as the Commission Rules, will be necessary in order to ensure compliancewith the testing procedures used.

PRESERVATION OF SPECIMENS AND RECORDS

Proposed Rule 9140.70 specifies the length of time the parties must keep either specimens or records associated with drugtesting. Laboratories testing the primary specimen of blood or urine with appositive, adulterated or substantive result mustretain the specimen for a minimum of three years, and it must be stored in a manner as outlined in the rules and inaccordance with the requirements set forth by the Department of Health and Human Services (though not specified, itappears the rule is referring to the Federal agency). An employee, the MRO, or the employer may request, in writing, thatthe laboratory retain a specimen for an additional period of time not to exceed one year. Split specimens must also beretained in a similar fashion. Laboratories must retain all records pertaining to the testing of each employee specimen for aminimum of two years, though this can be extended through a written request for an additional two years. Employers arerequired to maintain all collection forms for breath and saliva testing for a minimum of three years, and the employee mayrequest an extension of up to an additional year. Negative testing samples are to be discarded as soon as possible.

CONCLUSION

Many employers conduct routine drug testing anytime an employee reports a workers’ compensation injury. For thoseemployers, we recommend confirming with your drug testing vendors to confirm whether the procedures to have in placewill comply with proposed rules to ensure a timely and effective transition for defending injuries resulting from alcohol ordrug intoxication. As it seems that the Commission borrowed from the Code of Federal Regulations when drafting theseproposed rules on the process and procedure of specimen collection and drug testing, it is possible that most facilitiescurrently providing specimen collection or drug testing will already be in compliance with these proposed rules. Nevertheless, any facility must be prepared to confirm that it wholly complies with the proposed rules, as even substantialcompliance with the rules may still result in a positive drug test result being barred from evidence. This is due to the factthat the rules use mandatory terms like “shall” and “must” throughout.

For those employers who do not perform routine drug testing at the time an accident is reported, we would recommend

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For those employers who do not perform routine drug testing at the time an accident is reported, we would recommendidentifying a facility or vendor that complies with the proposed rules to which an employee suspected of intoxication can bereferred for appropriate sample collection and testing. Even if it is clear by circumstantial evidence that an employee’saccident was caused by his or her intoxication, a failure to properly preserve this evidence through a conforming collectionand testing process could result in an inability to deny the claim. By having an appropriate facility identified in advance, thechances of successfully obtaining an admissible test result and defending a claim could increase significantly.

Should you have any questions or concerns regarding these proposed comments, please feel free to contact any of theattorneys in our office to discuss them in greater detail. We look forward to an open ongoing dialog with our clients as thisnew statutory defense in intoxication continues to develop.

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Joseph A. Garofalo

Garofalo, Schreiber, Hart & Storm, Chartered55 West Wacker Drive, 10th FloorChicago, IL 60601

Office: 312-670-2000Direct: 312-499-8911Cell: 312-622-3750Fax: 312-419-1336jgarofalo@gshslaw.com

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