by Barbara J. Koenig
Foster, Rieder & Jackson, P.C.
A new law in New Mexico is designed to clear up confusion on how workers’ compensation benefits can be lowered when a worker is under the influence of alcohol or drugs. The law will go into effect on May 18.
The new law was enacted because New Mexico Workers’ Compensation Administration (WCA) judges have faced troubling issues raised by two conflicting statutes. One law said a worker found to be under the influence of alcohol or drugs at the time of an injury wouldn’t be entitled to any workers’ comp indemnity benefits at all. Another law said the judge must reduce benefits by 10%.
In practice, the no-benefits law was usually ignored, and at most, a worker’s indemnity benefits were reduced by 10% if the accident appeared to be at least partially caused by the use of drugs or alcohol.
The specific language in the old laws was another problem. The 10% reduction provision went into effect only when the worker’s intoxication or impairment was a “contributing cause” of the workplace injury. The total-loss-of-benefits provision applied only when the workplace injury was “occasioned by” the worker’s use of alcohol or “occasioned solely by” impairment resulting from drugs. Both provisions proved difficult to apply in real-life situations.
The new law amends the existing statutes to make them consistent and clearer. It defines “intoxication” and “influence.” It also requires WCA judges to reduce a worker’s benefits by “the degree to which the intoxication or influence contributes to the . . . injury or death,” starting with a minimum of 10% and capping at 90%.
The law requires employers to adopt two measures to take advantage of its provisions. First, an employer must adopt a written policy stating its workplace is alcohol- and drug-free. The policy may include postaccident drug and alcohol testing, and it must provide notice to employees that their workers’ comp benefits may be reduced if their use of alcohol or drugs contributes to a workplace injury.
Second, the law prevents an employer from claiming the benefits reduction if, before the workplace accident, it knew or had “constructive knowledge” that the worker was intoxicated or under the influence of drugs, had a reasonable opportunity to take appropriate measures in response, and failed to do so. This part of the law likely will lead to disputed claims that may result in workers’ comp trials.
Barbara J. Koenig is an attorney with Foster, Rieder & Jackson, P.C., in Albuquerque and a regular contributor to New Mexico Employment Law Letter. For more information on the new workers’ comp law, see Barbara’s article in the April 2016 newsletter. You can reach her at barbara@frjlaw.com.