The Intoxication Defense in Georgia

Drugs and alcohol certainly have no place in a safe work environment. In fact, Georgia provides a discount on workers’ compensation insurance premiums for employers who participate in the Drug-Free Workplace program established by the Georgia Workers’ Compensation Act. However, despite the obvious dangers of employees working while under the influence of drugs or alcohol, Georgia law does not automatically bar a workers’ compensation claim based on a positive post-accident drug/alcohol test. As such, there are steps employers need to take to ensure their intoxication defense is as strong as possible.

The Rebuttable Presumption

A positive drug/alcohol test does not automatically bar a workers’ compensation claim. Instead, it gives rise to a rebuttable presumption that the accident occurred because the employee was intoxicated. The burden then shifts to the employee to prove by clear, positive, and uncontradicted evidence that the accident did not occur because they were intoxicated. The rebuttable presumption also arises if the employee unjustifiably refuses to submit to a post-accident drug test.

If an accident is not reported right away, there is unlikely to be a timely post-accident drug test that gives rise to the rebuttable presumption. However, any evidence of drug use can potentially damage an employee’s credibility.

Getting the Drug Test into Evidence

An alcohol test is positive if there is a BAC of 0.08 within three hours of an accident. Any amount of drugs in the employee’s blood within eight hours of the accident is enough. However, the results have to be admitted into evidence at a hearing for the rebuttable presumption to arise.

To make sure this happens, the sample needs to be taken by a qualified professional, typically a doctor or nurse, or by someone certified or employed by a lab or collection company. For example, Quest Diagnostics has a program by which an employee can be certified to collect samples on their behalf. Once the sample is collected, the chain of custody needs to be monitored from when the sample is collected until it is processed by the lab. If the sample was not taken by a qualified person or if the chain of custody cannot be established, the test results are inadmissible in court.

Of note, the law provides for the sample to be collected in a number of methods (e.g. blood, urine, breath, etc.), but the legal standard is based on the amount of drugs/alcohol in the employee’s blood. As such, it is preferable to insist that a blood test be performed upon first medical treatment. A blood sample can also be taken by the employer if a qualified person is available.

Rebutting the Presumption

Assuming the positive test is admitted into evidence, the employee now has the burden to prove the accident was not caused because he was intoxicated. Typically, the defense is based on a self-serving denial of drug/alcohol use. They may also call co-employees as witnesses to testify they were not acting in an intoxicated manner either while working or immediately following the accident, as well as to testify the accident was unavoidable and could have happened to anyone. As such, it is important to get signed statements as soon as possible from any co-employees who worked with the employee or who witnessed the accident.

Employees may also challenge the reliability of the test from a scientific standpoint. If so, they would need an expert opinion, so it is important to ask the employee in discovery to identify any experts and produce any expert reports. If there is an expert, the employer should consider retaining its own expert to refute the employee’s expert.

If there is a “battle of the experts,” an actual blood test is going to be very important, as a blood test is more reliable than other testing methods. Without a blood test, the employee’s expert will have an easier time challenging the accuracy of the results.

Recommendations

• Participate in the Drug-Free Workplace Program
• Post clear notices that employees are subject to a post-accident drug/alcohol test
• If the employer collects the sample, make sure it is taken by a qualified medical professional or by someone certified by a lab/collection company to collect samples—and make sure the chain of custody is kept.
• A blood test is best—insist on a blood test upon first medical treatment.
• Take written statements from all co-workers and witnesses.

Written by: Michael Memberg, Esq.