In Pennsylvania, Workers' Compensation Insurance (WC) is based on a no-fault liability premise, which means a workplace injury is covered by Workers Comp regardless of who is at fault. However, there are a few exceptions, such as the "intoxication defense."
"This is a relatively new defense. The Workers' Compensation Act, when originally drafted and enacted, had no intoxication defense," Rothman Gordon Attorneys states. "It was not until 1993 that the Intoxication Defense was added as a part of a nationwide trend of cracking down on drugs and alcohol in the workplace.
A string of drunk driving offenses established that because a blood alcohol content (BAC) over the legal limit (currently .08) established a presumption of intoxication, employers argued they could establish the same presumption in the workplace."
Furthermore, "Pennsylvania is the only state that does not oblige the employer to prove intoxication was the proximate cause (a material contributing factor) of the accident."
Today, the Pennsylvania Workers' Compensation Act states, "In cases where the injury or death is caused by intoxication, no compensation shall be paid if the injury or death would not have occurred but for the employee's intoxication." However, it is important to note that the burden of proof is with the employer.
Over time, alcohol can affect job performance and threaten the health and safety of all employees and the security of your equipment and facilities. So, what can an employer do to protect itself and its employees regarding the use of alcohol?
Create a Policy
Set a clear, legal, and enforceable written policy regarding the use of alcohol that includes enforcement, punishments, and drug and alcohol testing policies. Ensure that you have written confirmation that each employee understands the policy.
Pay Attention to Employees
Pay attention to how your employees are acting. The U.S. Office of Personnel Management states, "Even though you must not try to diagnose the problem, there are many signs that may indicate a problem with alcohol…" Those signs include the following:
- Unexplained or unauthorized absences from work
- Frequent tardiness
- Excessive use of sick leave
- Patterns of absence such as the day after payday or frequent Monday or Friday absences
- Frequent unplanned absences due to "emergencies" (e.g., household repairs, car trouble, family emergencies, legal problems)
- Missed deadlines
- Careless or sloppy work or incomplete assignments
- Production quotas not met
- Many excuses for incomplete assignments or missed deadlines
- Faulty analysis
- Relationships with co-workers may become strained
- The employee may be belligerent, argumentative, or short-tempered, especially in the mornings or after weekends or holidays
- The employee may become a "loner"
- The smell of alcohol
- Staggering or an unsteady gait
- Bloodshot eyes
- The smell of alcohol on the breath
- Mood and behavior changes such as excessive laughter and inappropriate loud talk
- Excessive use of mouthwash or breath mints
- Avoidance of supervisory contact, especially after lunch
- Sleeping on duty
Document Reasonable Suspicion
SHRM states, "Concerns that an employee is under the influence often come from co-workers or even clients or vendors before a supervisor or manager notices." If you receive a complaint or suspect an employee is under the influence of alcohol (or drugs) at work, you need to document it properly. SHRM suggests the following steps:
- Receive complaints
- Observe the Employee
- Remove the Employee from Safety-Sensitive Areas
- Document Observations
- Assess the Situation
- Meet With Employee
- Prepare Transportation
- Send the Employee for Testing
- Wait for Test Results
- Respond to Employee's Refusal to Take the Test
- Respond to Negative Test Results
- Respond to a Positive Test Result
Workers' Compensation Benefits
If you suspect the use of alcohol caused a workplace injury, you can fight the claim; however, the burden of proof is on you as the employer. Policies regarding alcohol must be established and enforced, everything must be well documented, and a thorough investigation with evidence is crucial for successful denial of claims.
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The independent agents at American Insuring Group specialize in WC Insurance and are dedicated to helping you save on WC and other insurance costs. As independent agents, we shop the market, comparing rates and coverages among competing insurers. We shop so you can save!
So, call us today at (800) 947-1270 or (610) 775-3848, or connect with us online.