Illinois and many other states have legalized marijuana and also don’t aggressively go after most recreational drug users. While this is a big change in how we all grew up, it hasn’t changed Illinois workers compensation or labor laws.
Under Illinois law, unless you are in a union, your employer essentially can drug test you whenever they want. It typically doesn’t happen a lot except in industries like the medical field where you may have access to drugs and lives are on the line. It does happen a lot after a work related injury.
The reason you might find yourself drug tested after a work injury is not because your employer wants to, but because their insurance company is making them do that. Basically, if you are found to have drugs in your system, it creates a potential defense that can be used to deny your case.
As a quick aside, please know that failing a drug test doesn’t end your work comp case. It just creates a defense. Call us with questions about that or search the blog as we’ve written a lot about it.
A question we get a lot from injured workers is how long after accident can an employer drug test you? The answer is they can do it whenever they want.
But more importantly, the longer they take to drug test you, the less relevant it is. In other words, if you hurt your leg at work on a Friday and they don’t drug test you until the following Tuesday, showing that drugs are in your system is easy to explain. “I was in pain so I smoked some marijuana over the weekend.” They can’t prove when you smoked or that you were inebriated when the accident happened.
On the other hand, if you crash a forklift and they immediately send you to a company medical doctor who as part of his/her exam has you pee in a cup, that’s much more relevant to proving drugs or alcohol were in your system when you got hurt. If it’s alcohol, you’d probably lose your case, but if it’s drugs it can still be explained away.
What you can’t do, if you want to pursue Illinois work comp benefits, is refuse to do a drug test. If you do, winning a case will be almost impossible. And in the least you will create a long, hard road for yourself before you can prevail. I think every work comp lawyer I know would rather have a client who failed a drug test than refused to take one.
All that said, I know some workers don’t report a work accident because they know they will test positive and are worried they will get fired if they do. It is legal to terminate someone who fails a drug test, but it won’t mean you forfeit your work comp rights. If you have a serious injury it’s probably a risk you have to take as not getting work comp would likely cost you so much more.