NEW MEXICO’S BUSINESS LAWYERS ®

Workers’ Comp Law Change Is Incentive for Written Drug-and-Alcohol-Free Policies

August 23, 2016

Justin SawyerA worker who suffers a job-related injury in New Mexico will be entitled to full workers’ compensation benefits–unless the employer has implemented a written policy declaring a drug-and-alcohol-free workplace and includes certain notices to its workers. If an employer has such a policy in place, the changes in New Mexico law as of May 18, 2016, may now permit the employer to reduce the amount of workers’ compensation benefits payable to the worker from 10 percent to 90 percent, depending on how much the worker’s intoxication caused the accident or injury.

New Mexico Governor Susana Martinez signed legislation into law this year amending New Mexico’s Workers’ Compensation Act as it relates to the benefits of workers who were intoxicated or under the influence at the time of their injury.  Previously,  the Workers’ Compensation Act provided that a worker is not entitled to any compensation from the employer under the Workers’ Compensation Act if the injury was solely caused by the worker being under the influence of alcohol or drugs. Compensation otherwise payable to a worker under the Workers’ Compensation Act was reduced by 10 percent when the worker was under the influence of drugs or alcohol at the time of the injury, even if it was not the sole cause of the injury.

The amended Workers’ Compensation Act now provides more of a “sliding scale” approach to reduce the worker’s benefits when the worker is intoxicated or under the influence at the time of the injury.  There are a few caveats:

  • First, the employer is barred from claiming a reduction in compensation due to the worker’s intoxication or influence if the employer fails to implement a written policy that declares a drug-and-alcohol-free workplace.  This policy may require post-accident drug and alcohol testing, and the employer should give workers notice that workers’ compensation benefits may be reduced in the event intoxication or influence contributes to a workplace injury.
  • Further, an employer can be barred from claiming a reduction in compensation due to the worker’s intoxication or influence if the employer had actual or constructive knowledge of the worker’s intoxication or influence before the accident and had a reasonable opportunity to take appropriate measures in response to the intoxication or influence, but failed to do so.
  • Lastly, if the worker refuses to submit to a post-accident test or release the post-accident test results to the employer, the worker is not entitled to any compensation otherwise payable under the Workers’ Compensation Act.

If you have questions about updating your employee handbook or any questions relating to these changes, workers’ compensation lawyer Justin R. Sawyer is available at 505-883-3415 or jrs@sutinfirm.com.

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