Legislation Seeking to Strengthen the Impairment Defense
Representative Paul DeMarco (R) of Birmingham, has introduced HB 104 seeking to amend §25-5-51 of the Alabama Workers’ Compensation Act. HB 104 relates to injuries caused by an employee who is impaired by drugs or alcohol. As initially drafted, the billed would have prevented an employee, or the employee’s estate, from receiving medical and indemnity benefits if the injury or death was the direct result of impairment or intoxication caused by the employee’s alcohol consumption or drug use. The bill then provided that, once the employee had a positive drug or alcohol screen according to the U.S. Department of Transportation, the burden would be on the employee to demonstrate that the impairment was not the cause of the injury or death.
Unfortunately, the bill was weakened by two amendments added by the House Judicial Committee. In addition, the Medical Association added an amendment that requires an employer to notify a medical provider in writing if the employee was guilty of a drug or alcohol offense thus ending the coverage through the employer.
The Trial Lawyers Association further weakened the bill with its amendment requiring the employer to petition the court once a positive drug or alcohol screen is received for a determination on whether medical and indemnity benefits can be terminated. Medical benefits would be due until the date the Court ruled they were no longer owed as a result of the positive drug screen. At the hearing, if the test resulted in a blood alcohol level equal to or greater .08 as stated in §32-5A-191 (a)(1) of the Alabama Code, there would be a rebuttable presumption that the employee was impaired. If conclusively established that the employee was impaired and the employee proves by a preponderance of the evidence that the impairment did not proximately cause or contribute to the accident, then the Court could deny the petition filed by the employer. If only rebuttably presumed impaired and the employee proves by a preponderance of the evidence that a) he or she was not impaired, or b) though impaired, the impairment did not proximately cause or contribute to the accident, the Court may then deny the employer’s petition. If the employee was given written warning that the refusal to submit to or cooperate with testing would result in the forfeiture of benefits, the employer’s responsibility to pay compensation and medical benefits would terminate as of the date of the refusal.
With the two amendments the bill gained committee approval and is awaiting further action by the House. We will continue to monitor the status of this bill during this legislative session.