The Louisiana law granting employers a defense to workers’ compensation claims due to drug or alcohol intoxication [La. Rev. Stat. 23:1081] has become a model for other states seeking to reform their compensation laws. The Louisiana law gives the employer the right to require employees to submit to drug testing if they are injured on the job. An employee who fails to submit to the testing will be presumed to be intoxicated.
Whenever alcohol is involved, there will be a presumption of intoxication if the level of alcohol in the blood is 0.10 or greater. A positive test for drugs or alcohol will result in a presumption that the employee was intoxicated at the time of the accident. Perhaps the most important provision in the law is the presumption that the accident was caused by intoxication.
An employer wishing to avail itself of the drug defense must be certain that the drug testing is done in accordance with the rules of the Office of Workers’ Compensation AND the employer should develop a written Drug and Alcohol Abuse Policy. There is case law in Louisiana which has held that the presumptions do not apply unless the employer has a written and promulgated drug policy.
Should you need assistance in developing a substance abuse policy or simply need some sober advise on the subject, give us a call.