By Chad McDonald, Esq.
When an injured worker fails a drug screen after a work-place accident, the employer and insurer rightly want to deny the claim.  However, to effectively assert the “Intoxication defense,” employers and insurers should be aware of several requirements, which include the method and timing of the test, as well as what to do if the test is not “perfect.” 
What is required for an Intoxication Defense? Pursuant to O.C.G.A 34-9-17, workers’ compensation benefits can be denied if, at the time of the accident, the employee: 1) had ingested alcohol or marijuana or improperly ingested a “controlled substance,” 2) to the point of intoxication (or impaired judgment), and 3) the employee’s intoxication proximately caused the accident.
  Timing is everything.  For the employer and insurer to get the benefit of the rebuttable presumption that the employee’s intoxication caused the accident, the employer and insurer need to be able to document the employee had a substance in his bloodstream within a specified time after the work injury. This can be accomplished by administering the test within the specified time or by an expert being able to testify that the employee would have had the substance in his body during the specified time based on later testing.  Effectively, what this means is that the test itself may not need to be performed within the specified time so long as an expert can testify that the employee had the substance in his body during the time specified by statute.  
  Marijuana/ controlled substances within 8 hours: In a case of suspected intoxication by marijuana or a controlled substance, the employer must obtain a chemical analysis showing any amount of marijuana or controlled substance within eight hours of the time of the alleged accident.   Alcohol within 3 hours: To meet the initial threshold in a case of suspected alcohol intoxication, an employer must obtain a chemical analysis of the employee’s blood, urine, breath, or other bodily substance showing a concentration of 0.08 grams or greater within three hours of the time of the alleged accident.   Testing needs to be performed at a lab which complies with the Drug Free Workplace Act, O. C.G.A 34-9-415.  In addition, the test needs to be accompanied by an affidavit from the laboratory confirming authenticity. Proper identification of the sample and proper chain of custody needed  
How to prove the Intoxication Defense without a perfect drug screen?  In many circumstances, the employer and insurer may not be able to show by testing the employee had alcohol or a controlled substance in his bloodstream within the requisite time period or all of the aforementioned protocols may not have been met.  The employer and insurer would not be entitled to the rebuttable presumption that the intoxication caused the accident, but the employer and insurer can still prevail in court by using “lay evidence” to prove the requirements of O.C.G.A. 34-9-17.  Examples of such lay evidence could include credible witness testimony in reference to observing the employee’s illicit drug or alcohol use or admissions by the employee of the same just prior to the accident, erratic behavior, impaired judgment by the employee before the accident, odor of alcohol or illicit drugs, altered physical appearance such as blood shot eyes or flushed face and unsteadiness/slurred speech.
What if the employee refuses to submit to a drug screen?  If the injured employee unjustifiably refuses to submit to a reliable, scientific drug screen in the manner set forth in O.C.G.A. 34-9-15, then the employer and insurer get the rebuttable presumption that the accident was caused by the consumption of alcohol or the ingestion of marijuana or a controlled substance.