Warning to everybody who goes to work: New Mexico finally has a workers’ compensation drug and alcohol law that almost makes sense. If you are irresponsible enough to drink or use drugs at work, or before work, or you are an employer who allows that sort of behavior, it’s time to shape up.
WORKERS: If you get injured at work, do not refuse to take a drug test. If the test shows you were drunk or stoned, your workers’ compensation cash benefits will be reduced. If you refuse to take the test, you’ll get no money.
EMPLOYERS: If you do not have a drug-and-alcohol-free workplace policy, you need one. The law takes effect July 1, but don’t wait to do this. Model policies are available online, or contact your insurance carrier (contact information should be in a poster on your wall that you should have put there). You can also check with the New Mexico DWI Resource Center (dwiresourcecenter.org).
If you already have such a policy, you will need to modify it to inform workers that their workers’ comp benefits may be reduced if the worker was under the influence. Give employees a memo describing the policy. Or ask them to sign the memo and return it to you; then keep it on file. And post the policy on your wall. If you don’t, and you have a claim involving a drunk or stoned worker, the worker’s attorney may challenge the claim and you will have messy litigation.
And comply with your own policy! If your workplace has a fridge full of beer, or you buy drinks for the gang at lunch, you won’t win the claim.
INSURANCE AGENTS: get off your duff, provide a service for your clients and help them to establish a drug-and-alcohol-free workplace policy including the new requirements.
The new law says that if the employer has a policy declaring a drug-and-alcohol-free workplace, with all the legal buzzwords, and after an accident the worker is drug-tested and found to have been drunk or stoned, indemnity benefits may be reduced in proportion to the degree the worker’s condition contributed to the accident – from 10 to 90 percent. The worker still gets full medical coverage. If the worker was killed, surviving family members get full benefits.
The bill (Senate Bill 214, sponsored by Jacob Candelaria, D- Albuquerque) is written so that every claim involving the drug and alcohol issue will have to be either litigated before a workers’ compensation judge or negotiated. This is a far less than perfect solution because it adds litigation and argument, but it was the best available compromise.
A Senate committee added an amendment that makes the law harder on employers. It says the reduction in benefits cannot be taken if the employer knew about the worker’s intoxicated condition and had an opportunity to intervene but didn’t.
This makes employers responsible if they don’t stop a worker from working drunk or stoned. It puts the burden on employers to have competent supervisors or whatever else they can do. We’ll have to wait until a few cases get to the appellate courts – and they surely will – to see what this means in practice.
SB 214 – without the amendment – resulted from a few years of negotiation and compromise, conducted mostly with exemplary good faith, by the Workers’ Compensation Advisory Council. The business and labor sides of the Council worked diligently to draft a law that was fair to all parties. Letting workers keep full medical benefits and letting survivors of deceased workers keep all the indemnity benefits were essential to the compromise.
Let’s hope this change helps to convince New Mexico workers that it’s a bad idea to go to work under the influence of anything stronger than coffee.
Triple Spaced Again, © New Mexico News Services 2016