Under the Influence of the Intoxication Defense

According to the U.S. Department of Labor, the use of drugs or alcohol at work significantly increases the the risk of workplace accidents. With this in mind, sooner or later every major employer will inevitably need to address a workers’ compensation claim involving some kind of intoxication.

All states have some defense available to employers when an injured employee is found to be under the influence of drugs or alcohol at the time of an alleged incident or accident. Most states recognize a separate defense for intoxication. However, for a minority of states, there is no distinct defense for intoxication, but employers can rely upon two broader defenses:

•     The injuries were caused by the employee’s willful or intentional misconduct.

•     The employee’s voluntary intoxication took them out of the course of their employment, rendering the accident not compensable.   

The mere fact of an employee’s intoxication alone is not an automatic bar to compensability. While every state requires that the intoxication be shown to have caused the accident, the degree of causation varies by state and generally falls into either the proximate or contributing cause, or sole cause.

The majority of states require that the employee’s intoxication be shown to be a proximate or contributing cause of the accident. Under these standards, it is not enough that the injured employee was intoxicated at the time of the accident—it must be shown that the intoxication played a significant role in the accident. 

In contrast to this, a minority of states hold the requirement that the employee’s intoxication be shown to be the sole cause of the accident, including New Jersey, the state where I live and practice. This is the most stringent requirement because evidence of any other cause—no matter how minor—will defeat the defense. For many jurisdictions that still hold to it, the “sole cause” requirement has practically nullified the intoxication defense. For example, there has only been one published opinion in New Jersey in 50 years in which an employer successfully obtained a dismissal of a claim for intoxication. Over the years, a number of states have shifted from the sole cause requirement to the proximate or contributing cause defense, but a minority maintain it.    

Assuming that an employer successfully demonstrates an accident was caused by intoxication (by whatever standards their jurisdiction requires), what happens to the claim? For most states, the intoxication defense is a complete bar to the claim. If the employer prevails in asserting this defense, then the claim will be dismissed. However, some states will only reduce benefits for intoxication, not dismiss the claim entirely. For example, in Colorado, if the employer can demonstrate intoxication, the injured employee’s non-medical benefits will be reduced by 50%. New Mexico has formed a hybrid of these two approaches: It dismisses claims wholly if intoxication is shown to be the sole cause, and applies a 10% reduction in benefits if it is merely a contributing cause. 

In many jurisdictions, an employer can avail themselves of a rebuttable presumption that the intoxication caused the accident if there is a certain amount of alcohol and/or drugs in the employee’s system at the time of an accident. If this occurs, then it is the employee’s burden to prove that their intoxication was not the cause of the accident. If the employee fails to meet this burden, then the employer prevails on its intoxication defense. For jurisdictions like Indiana, an employee’s refusal to take an alcohol or drug test will also trigger this rebuttable presumption.

It is imperative that employers are familiar with their state’s laws and confer with counsel regarding these rebuttable presumptions. Many states have strict requirements regarding the type of blood or alcohol test that is used and how long after the accident it is performed. If the testing reveals a high alcohol/drug presence in the employee’s system but the employer did not comply with state requirements in performing the test or preserving the results, then the court may not recognize a rebuttable presumption in its favor. 

Additionally, there are other nuances that should be considered in raising the intoxication defense. Courts will sometimes decline to consider this defense if the intoxication itself is deemed work-related. For example, in the case 2800 Corp. v. Fernandez (1995), the Iowa Supreme Court held that an employee—an exotic dancer who was expected to drink with customers as part of her job duties—had become intoxicated in the course of her employment. As a result, the court would not consider intoxication as a defense in the same way it would if the intoxication had resulted from something unrelated to her employment.  

Lastly, some jurisdictions consider an employer’s knowledge of its employee’s drug or alcohol use. For example, in Montana, if an employer is aware of an employee’s use of drugs or alcohol but has not taken affirmative steps to stop them, then the court will not consider an intoxication defense.

Each employer should take the time to become familiar with their state’s laws and approach to the intoxication defense, and discuss with counsel when needed. This way, if a workplace accident involving intoxication occurs, they will be in the best position to assert the defense against any claim that may be filed.