Does an employee who is injured while drunk or high deserve full workers’ compensation benefits? New Mexico recently passed S.B. 214, a law which addresses this very issue—limiting worker's compensation to employees who are found to be intoxicated.
If an employer has a written policy barring alcohol and drug use at work and a post-incident test (at the employer’s expense) reveals that the employee was intoxicated during the incident, S.B. 214 reduces that employee’s benefits by 10-90%. The exact amount of the reduction is based on how much the employee’s intoxication contributes to the incident leading to injury or death. Where a worker refuses to submit to a test after an incident, they are denied all workers’ compensation benefits under the law. This law works in addition to an overarching rule that states where an employee’s intoxication is the actual cause of their injury, they receive no benefits whatsoever.
When asked about signing the law, the Governor of New Mexico said, “If an employee is drunk or high on the job, they shouldn't be rewarded with full workers compensation benefits when they injure themselves…It’s a matter of common sense, and that's why I'm signing this legislation.” At first glance, the law does seems like common sense. If somebody chooses to show up to work drunk or high and it leads to an accident, or even contributes to one, it hardly seems fair to hold an employer fully responsible for the results of that person’s poor judgment. The law even takes into account prescription drugs, excluding their effects from the definition of intoxication so as to avoid penalizing workers for their medical conditions.
However, the provisions of the law creating a minimum reduction in benefits offer an exploitable loophole for negligent employers.
S.B. 214’s History of Rejection
S.B. 214 replaces New Mexico’s previous approach to reducing workers’ compensation for intoxicated employees whose intoxication is not the cause of their injury. The old law simply applies a flat 10% reduction in benefits for anybody found to be voluntarily intoxicated at the time of their accident.
The most common concerns raised by opponents to the change have been the increased litigation and the burden to families of intoxicated workers who receive no workers’ compensation or medical benefits. The concern of increased litigation is a real one. It is unlikely that employers will not test every employee in an accident to see if they are intoxicated when doing so has the potential to decrease their liability. Every time that there is an intoxicated employee involved in an accident, there will need to be a full analysis of the facts to determine exactly how much that intoxication impacted the accident. This is a much more involved process than simply determining whether the inebriation actually caused the accident.
S.B. 214 does make efforts to address the concern of burdening the families of deceased or injured intoxicated workers. The law states that intoxication cannot reduce medical benefits of a deceased worker's dependents. This serves to alleviate much of the potential burden on families, but not all of it. Workers’ compensation supports those with workplace injuries that keep them from working, as there is no way to reduce these benefits without putting some strain on those who would rely on that injured worker’s income. Many workers’ compensation systems, including New Mexico’s, are no-fault systems. This means that employees receive benefits even if a workplace accident is their own fault. S.B 214 represents a departure from this underlying tenet in the case of intoxicated workers.
Minimum Reductions: 10% Off For Unsafe Employers
Despite these concerns, there is a reasonable argument behind S.B. 214—where the intoxication of an employee is not the actual cause of their injury, but still contributes, an employer should not be held fully responsible. However, there is no explanation behind requiring a 10% minimum reduction in benefits—regardless of an employee’s actual level of culpability. By deciding to enact a law that requires a full factual analysis of every situation to determine level of culpability, New Mexico has declared that they consider the additional time spent on litigation for this analysis to be worthwhile. So why not allow an analysis determining culpability for 0-100%? The only real reason seems to be that S.B 214 is piggybacking off the very law it seeks to replace.
Employees should not show up to work under the influence of alcohol or drugs. Reducing workers’ compensation to intoxicated employees based on how much their inebriation contributes to an accident is not without basis. That being said, giving what amounts to a 10% discount to an employer who is entirely at fault for injuring their employee is bad policy-making.
Whatever they choose to do going forward, New Mexico’s new law has the potential for an improvement over their previous flat 10% reduction to benefits. However, the arbitrary minimum reduction to benefits must be addressed before employers can use it as a convenient loophole to being held fully accountable for their negligent actions.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law