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Written by: Melissa Woodard
With prescription drug and opioid addiction on the rise in America and an estimated 20 million Americans in need of treatment for drug or alcohol addiction, the prevalence of drug and alcohol use in the workplace is a serious concern for employers.
As you might imagine, working under the influence of an intoxicating substance can increase the risk of work-related injuries, especially for laborers, drivers, and heavy-machinery operators. The North Carolina Workers’ Compensation Act provides an absolute defense under N.C.G.S. § 97-12 against workers’ compensation claims when the employee’s injury or death was proximately caused by intoxication where the employer did not supply the intoxicant. There is also a complete defense when the employee was under the influence of a controlled substance except when the substance was prescribed by a practitioner. The statute defines “intoxication” and “under the influence” as consuming a sufficient quantity of the intoxicating beverage or controlled substance to cause the employee to lose normal control of his bodily or mental faculties such that he was appreciably impaired at the time of the injury. This is similar to the standard for impairment in driving while impaired (DWI) criminal offenses.
Appreciable impairment is difficult enough to prove for law enforcement even with standardized field sobriety tests and breathalyzer results. In workers’ compensation claims, we often have far less scientific and circumstantial evidence of impairment. Blood and breath may not be tested after a work-related injury and co-workers cannot always provide specific eye-witness testimony about the signs of impairment. Even if a blood or urine drug screen is done, the evidence may be inconclusive as to impairment. Importantly, unlike alcohol, many illicit and prescription drugs remain in the blood or urine long after the intoxicating effects have subsided.
The Court of Appeals held in Moore v. Sullbark Builders, Inc. that the mere presence of cannabinoids, or the chemical compound in marijuana, without a specific concentration in an employee’s urine is insufficient to prove impairment. 198 N.C. App. 621, 680 S.E. 2d 732 (2009). A toxicologist testified that even if the employee had used marijuana before work that day, the intoxicating effects would have subsided by the time the accident occurred, to say nothing of the fact that it is well-recognized in the scientific community that positive urine drug screen results for cannabinoids cannot establish impairment.Id. The same is true for many illicit and prescription controlled substances. So, even if a urine drug screen is performed and the results show illicit or prescription drug use, this alone is not enough to provide a defense to the claim under N.C.G.S. § 97-12. Expert medical testimony will often be required to establish intoxication in addition to a drug screen.
Alcohol impairment presents different challenges. The presence of alcohol in the blood or urine is directly correlated with its intoxicating effects. While this can be a helpful fact, it is also a problem. If a person has a blood alcohol concentration that is at or above the recognized limit indicating appreciable impairment while driving, which is 0.08 mg/dL, the Court has held the person is “intoxicated” under § 97-12. Gratz v. Hill, 189 N.C. App. 489, 658 S.E.2d 523 (2008). However, alcohol metabolizes, or is processed, very quickly in the body, at a rate of 0.015 mg/dL per hour for most people. This means that if an employee has a blood alcohol concentration of 0.10 mg/dL at the time of the accident, which is well above the legal limit, his or her blood or breath may test below the legal limit just 90 minutes later. Expert testimony is required to extrapolate the impairment level when a significant period of time has passed between the accident and the test for alcohol concentration.
Also, co-workers and employers are not usually specifically trained to recognize the telltale signs of impairment. They may not consider their fellow employee is intoxicated before an injury, and even if they do, workers’ compensation hearings are often months if not years after the accident. Testifying under oath about specific details such as this can prove challenging without proper notetaking or witness statements taken at or near the time of the accident. Therefore, prompt investigation of the claim is essential, including interviewing witnesses, gathering their statements and obtaining the injured worker’s recorded statement.
Even if an employer can prove the worker was intoxicated or appreciably impaired at the time of the accident, they must also prove that the impairment was “more probably than not a proximate cause of the accident and resulting injury.” Gaddy v. Anson Wood Products, 92 N.C. App. 483, 374 S.E.2d 477 (1988). Again, expert medical evidence will likely be required to demonstrate that the actual injury complained of was proximately caused by the employee’s intoxication. For example, if an intoxicated employee is injured in a motor vehicle accident while riding as a passenger, it is unlikely that employee’s injury was proximately caused by the intoxication. Simply put, the intoxication and the injury must be closely connected.
There are some practical steps employers can take to maximize workplace safety and minimize liability for injuries resulting from employee intoxication. First, it is important to institute a workplace policy that no alcohol or drugs other than those prescribed by a physician are to be consumed on the job or before work begins for the day. Second, encourage employees to report suspicious behavior that may indicate intoxication to a supervisor. Signs include red glassy eyes, slurred speech, unsteady gait, slow reaction time, and inability to divide one’s attention between two simultaneous tasks. Third, in some instances, employers can require testing for drugs and alcohol upon the report of a workplace injury. It is important to keep in mind, however, that the process for drug and alcohol testing is heavily regulated in North Carolina, so the advice of an employment law attorney is imperative before implementing any policies on drug testing. Workplace policies are not failsafe, but can be extremely helpful evidence in defending against workers’ compensation claims for intoxicated claimants. Employers seeking to enhance their drug free workplace and safety policies are encouraged to contact their employment law and workers compensation counsel for further advice.