When Does Drug Use Prevent Workers’ Compensation Benefits in Kansas?

Compliance Corner

When alcohol or drugs is involved in a workplace injury in the State of Kansas, a worker shouldn't expect to receive workers' compensation thanks to the state's "impairment defense." Simply Research subscribers have access to the rules regarding drug or alcohol consumption and workers' compensation, but we break it down here also.

'Impairment Defense' Basics

In Kansas, an employer shall not be liable under the workers' compensation act where the injury, disability or death was contributed to by the employee’s use or consumption of alcohol or any drugs, chemicals or any other compounds or substances, including, but not limited to, any drugs or medications which are available to the public without a prescription from a health care provider, prescription drugs or medications, any form or type of narcotic drugs, marijuana, stimulants, depressants, or hallucinogens.

Therapeutic Doses

In the case of drugs or medications which are available to the public without a prescription from a health care provider and prescription drugs or medications, compensation shall not be denied if the employee can show that such drugs or medications were being taken or used in therapeutic doses and there have been no prior incidences of the employee’s impairment on the job as the result of the use of such drugs or medications within the previous 24 months.

Blood Levels

It shall be conclusively presumed that the employee was impaired due to alcohol or drugs if it is shown that, at the time of the injury, the employee had an alcohol concentration of .04 or more, or a GCMS confirmatory test by quantitative analysis showing a concentration at or above the levels shown on the following chart for the drugs of abuse listed:

Confirmatory test cutoff levels (ng/ml)

Marijuana metabolite -- 15

Cocaine metabolite -- 150

Opiates:

Morphine -- 2000

Codeine -- 2000

Acetylmorphine -- 10 ng/ml

Phencyclidine -- 25

Amphetamines:

Amphetamine -- 500

Methamphetamine -- 500

Rebuttable Presumption

If it is shown that the employee was impaired at the time of the injury, there shall be a rebuttable presumption that the accident, injury, disability or death was contributed to by such impairment. The employee may overcome the presumption of contribution by clear and convincing evidence.

Refusing to Test

An employee’s refusal to submit to a chemical test at the request of the employer shall result in the forfeiture of benefits under the workers' compensation act if the employer had sufficient cause to suspect the use of alcohol or drugs by the claimant or if the employer’s policy clearly authorizes postinjury testing.

Admissible Evidence

The results of a chemical test shall be admissible evidence to prove impairment if the employer establishes that the testing was done under any of the following circumstances:

(1) As a result of an employer mandated drug testing policy, in place in writing prior to the date of accident or injury, requiring any worker to submit to testing for drugs or alcohol.

(2) During an autopsy or in the normal course of medical treatment for reasons related to the health and welfare of the injured worker and not at the direction of the employer.

(3) The worker, prior to the date and time of the accident or injury, gave written consent to the employer that the worker would voluntarily submit to a chemical test for drugs or alcohol following any accident or injury.

(4) The worker voluntarily agrees to submit to a chemical test for drugs or alcohol following any accident or injury.

(5) As a result of federal or state law or a federal or state rule or regulation having the force and effect of law requiring a post-injury testing program and such required program was properly implemented at the time of testing.

Not Admissible

The results of a chemical test performed on a sample collected by an employer shall not be admissible evidence to prove impairment unless the following conditions are met:

(1) The test sample was collected within a reasonable time following the accident or injury.

(2) The collecting and labeling of the test sample was performed by or under the supervision of a licensed health care professional.

(3) The test was performed by a laboratory approved by the U.S. Department of Health and Human Services or licensed by the Department of Health and Environment, except that a blood sample may be tested for alcohol content by a laboratory commonly used for that purpose by state law enforcement agencies.

(4) The test was confirmed by gas chromatography-mass spectroscopy or other comparably reliable analytical method, except that no such confirmation is required for a blood alcohol sample.

(5) The foundation evidence must establish, beyond a reasonable doubt, that the test results were from the sample taken from the employee.

(6) A split sample sufficient for testing shall be retained and made available to the employee within 48 hours of a positive test.

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