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Civil Rights Newsletter

Intoxication Defense to Workers' Compensation Claims

Workers’ Compensation systems generally represent a compromise between employers and employees. The employee is usually entitled to immediate compensation and treatment for job-related illnesses and injuries, regardless of the cause or who was at fault. In return, the employee generally gives up his right to sue the employer for damages related to the injury or illness.

Workers’ Compensation systems are largely a matter of state law, although federal Workers’ Compensation statutes cover certain workers. As a general proposition, Workers’ Compensation insurance typically covers the following costs

  • Medical care
  • All or a portion of lost wages
  • An award for a permanent or partial disability
  • Death benefits for survivors

Employer Defenses

Although the Workers’ Compensation system is generally a no-fault insurance system (i.e., workers receive benefits regardless of negligence or fault), most states authorize certain defenses to claims. Although their availability differs among states, some common defenses include:

  • Intoxication of the employee at the time of injury
  • Injury during the commission of a crime or a fight started by the employee
  • Self-inflicted injury
  • Knowing failure to use a safety appliance or follow printed or written safety rules
  • Injury during voluntary “horseplay” with co-workers

Intoxication Defense

Employee intoxication is commonly allowed as a defense to Workers’ Compensation claims, but the scope of the defense and its requirements vary among states. In most states the employer has the burden of proving that the employee was intoxicated at the time of injury. States differ, however, with respect to whether the intoxication must be the sole cause of the injury (e.g., New York) or merely a contributing cause. In some states, absent evidence to the contrary, proof of intoxication creates a presumption that it caused the injury.

In some jurisdictions, if the employee’s intoxication resulted from activities that benefited the employer’s business or interests, or the employer encouraged its use, the intoxication defense does not apply. Other jurisdictions allow Workers’ Compensation awards to be apportioned based on the extent the intoxication is determined to be a contributing cause.

Proof of Intoxication

Employers often rely on drug tests to establish the intoxication of an employee. In general, such tests must be administered soon after the injury occurs. Further, the employee must know of the possibility that he may be tested and a positive test result must be attained from a properly administered test (i.e., analysis performed by a third party laboratory). The necessary level of blood alcohol to establish the defense depends on applicable state laws. Intoxication (or lack of it) can also be demonstrated by eyewitness testimony and other evidence.

Constitutional Issues

In 2001, an amendment to Ohio’s Workers’ Compensation law became effective. According to the new law, in the event an employee tested positive for alcohol or non-prescription drugs, it was presumed that the impairment caused the injury. In effect, the presumption operated to make it more likely that the employee’s Worker’s Compensation claim would be denied.

The amendment went further, however. The presumption also applied in cases where the injured employee refused to submit to testing. Under these circumstances, so long as the employee had notice that such a test could be required, his refusal to take the test could result in a loss of Workers’ Compensation benefits.

In December 2002, the Ohio Supreme Court determined that the amendment was unconstitutional. The Fourth Amendment (and a similar provision in the Ohio Constitution) prohibits unreasonable government searches. Although the tests were conducted by employers, and not the government, the court reasoned that the conduct constituted government action because the state statute authorized the drug test at the risk of losing Workers’ Compensation benefits. Ultimately, the court held that mandating submission to a drug test, whether or not there was cause to believe that the employee was under the influence of drugs or alcohol, constituted an “unreasonable search.”

Workers’ Compensation laws in other states contain provisions similar to Ohio’s amendment. As a consequence, employers should be wary of requiring employees to submit to testing after any injury, especially when the employer has no reason to believe the employee was actually intoxicated.

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