The consumption of illicit substances, such as alcohol, marijuana and prescription narcotics, before or during work hours is on the rise among American workers, thus giving rise to more workers’ compensation claims involving the intoxication defense.

Ryan M. Dietz

California has long recognized that illicit drug and alcohol use on the job poses an increased risk of industrial injuries. Intoxication is an affirmative defense to compensability. Per LC 3600(a)(4), an injury "is not compensable when the injury is caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.”

The percentage of employees in the general U.S. workforce who tested positive for marijuana after a job accident reached a 25-year high in 2022, according to data released by Quest Diagnostics. In 2022, 7.3% of the general workforce tested positive for marijuana in post-accident urine tests.

A 2019 survey by the American Addiction Center found that 15.3% of respondents admitted to working under the influence of alcohol within the prior 12-month period, and 2.9% reported working under the influence of illicit drugs.

The U.S. Department of Labor has estimated that employees’ use of drugs or alcohol is a contributing factor in up to 38% of on-the-job accidents nationwide.

What do these statistics mean in the context of California workers’ compensation claims? Not much. Employers often mistakenly believe that following an on-the-job injury, if a drug test is positive, the claim can be denied. While it can be denied, a denial solely based on a positive drug test is unlikely to hold up in court.

In practical application, a positive drug or alcohol test following an accident may establish only one of three elements, all of which must be established by the employer to prevail on an intoxication defense. We’ll delve into these in greater detail.

The burden is on the defendant to prove each one:

• The employee ingested one or more intoxicants.
• The employee was intoxicated.
• The employee’s injury was proximately and substantially caused by the intoxication.

1. The employer must demonstrate that the employee ingested alcohol or unlawfully used a controlled substance.

Most commonly, a drug test is sufficient to demonstrate that the applicant ingested alcohol. A drug test can also demonstrate ingestion of any number of controlled substances. (See Health and Safety Code Section 11007 for a list of controlled substances.) These include illicit drugs such as crack cocaine, heroin, etc., and prescription drugs like Vicodin or other opiates.

If the applicant has a valid prescription for Vicodin, the employer would need to prove that at the time of injury, the applicant was using Vicodin “unlawfully.” Unlawful use of a controlled substance is not defined.

This first element may, in the majority of cases, be the least difficult to prove where the intoxicant is obviously unlawful — think heroin, crystal meth and cocaine — and the use of these drugs is always unlawful. But can you prove that the injured worker did in fact take these substances? A positive drug test is a crucial piece of evidence, and it should be obtained by a professional as soon as possible.

(2) The employer must prove that the employee was, in fact, intoxicated at the time of injury.

A positive post-injury drug test by itself is not sufficient to establish intoxication at the time of the injury.

In most circumstances, a post-injury drug test will need to demonstrate that the level of alcohol (or drugs) found in the applicant’s system is sufficient to cause intoxication (i.e., above the legal limit for alcohol). But a blood alcohol content above .08 is not, on its own, sufficient to prove intoxication.

Take as an example the case of Pirelli Armstrong Tire Corp. v WCAB (1999). The applicant’s post-injury drug test was positive for multiple narcotics, all of which were illegal, including cocaine and methamphetamine.

The court held in Pirelli that the applicant was not intoxicated at the time of injury because there was no corroborating evidence by way of witness statements reflecting that the applicant was behaving in such a way before the accident that would indicate he was, in fact, intoxicated.

Proving the second element is highly fact-dependent. If the employer wishes to assert an intoxication defense following injury, a blood or urine sample taken after the accident is advisable. Keep in mind that a drug or alcohol test obtained even a few hours after an injury occurs may not be a reliable piece of evidence to demonstrate intoxication at the time of injury.

Get a blood or alcohol test completed as soon as possible following an injury. Secure credible witness testimony concerning the applicant’s behavior around the time of injury.

(3) The employer must establish a cause-and-effect relationship between the employee's intoxication and the resulting injury.

When a defendant asserts intoxication as an affirmative defense, it must prove not only that the injured worker was intoxicated, it must also show that the worker’s intoxication was a proximate and substantial cause of the injury.

This is the most difficult element to establish for several reasons. The intoxication must be shown, by way of substantial medical evidence, to be the proximate cause of the injury. Intoxication must be the primary, but not necessarily the only, factor contributing to the injury.

In California Department of Corrections and Rehabilitation v. WCAB (Shadden) (2011), the applicant, who was a police officer, was found to have cocaine in his system after he died of a heart attack. Medical evidence was critical in this case. The AME testified that if the applicant ingested cocaine six hours before he had a heart attack, then it could be stated that his use of cocaine was the primary cause of his heart attack. However, a toxicologist testified that, although the decedent had cocaine in his system, it could not be assumed that he ingested cocaine six hours before his death. The court held that the employer failed to prove that the applicant’s intoxication was caused by his ingestion of cocaine.

Closing thoughts

Establishing the intoxication defense is difficult, but it remains a viable defense. Employers and their insurers may want to consider implementing post-injury drug testing policies where appropriate but also bear in mind that a positive drug test post-injury is only the first step in most cases.

Ryan M. Dietz is a workers’ compensation defense attorney at Bradford and Barthel’s Woodland Hills office. This entry from Bradford & Barthel's blog appears with permission.