Workers' Compensation News
On January 8, 2001, Governor Taft signed into law a workers’ compensation revision (Am. Sub. H.B. 122), that should bolster an employer’s defense to an employee’s injury when the injury was caused by the employee being intoxicated or under the influence of a controlled substance not prescribed by a physician.
Before the revision, the employer had to prove that the injury was caused by the employee being intoxicated or under the influence of a controlled substance. The difficulty was proving that the level of alcohol or drugs in an injured worker impaired the worker to the extent that the impairment caused the injury.
Effective April 10, 2001, the workers’ compensation law will provide a rebuttable presumption that alcohol or a non-prescribed controlled substance is the proximate cause of an injury to an employee who, through a blood, breath or urine test, tests positive at or greater than the statutorily determined level. If that is the case, then the injured worker has no valid workers’ compensation claim.To establish the grounds for the rebuttable presumption, the employer must have given prior notice to its employee that the results of, or the employee’s refusal to submit to, any chemical tests administered after an injury may affect the employee’s eligibility for workers’ compensation benefits. The law is specific as to the timing of the types of tests and results in order to create the rebuttable presumption. For example, to establish intoxication, any of the following criteria must be met through a chemical test administered within eight hours of an injury:
- the employee’s blood alcohol level tests equal to or greater than .10%;
- the employee’s breath alcohol level tests equal to or greater than .10 g/21 OL; or,
- the employee’s urine alcohol level tests equal to or greater than .14 g/100 ml. These levels of alcohol are the minimum testing levels used to establish intoxication under the current motor vehicle laws.
For controlled substances not prescribed by a physician, the chemical test must be administered within thirty-two hours of the injury. To establish the rebuttable presumption, the levels must be above levels established by both an EMIT and gas chromatography mass spectrometry test, or a GC/MS test. For example, a test for amphetamines must show a level of at least 1000 ng/ml (nanograms per milliliter) of urine for the EMIT test and 500 ng/ml of urine for the GC/MS test. For cannaboids, the levels are 50 ng/ml of urine for the EMIT test and 15 ng/ml of urine for the GC/MS test. Levels are also specified in the law for cocaine, opiates, and phencyclidine. Furthermore, the law creates a rebuttable presumption if the employee tests positive within thirty-two hours of the injury for barbiturates, benzodiazephines, methadone or propoxyphene above levels certified by the United States Department of Health and Human Services.
With this legislation, employers should, if they have not already done so, consider implementing a drug testing program for accident prevention as well as protecting against workers’ compensation claims caused by intoxication or use of controlled substance not prescribed by a physician. The employee must be given notice prior to the injury that the result of, or the employee’s refusal to, submit to any of the chemical tests after an accident may affect their eligibility to receive workers’ compensation benefits.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.