What is the ‘Intoxication Defense’ in Colorado?

Compliance Corner

If you're intoxicated and you get hurt on the job in Colorado, it will be presumed that your intoxication caused the injury unless you can prove otherwise. Simply Research subscribers have access to info on the "intoxication defense" in the Rocky Mountain state, which we highlight here.

The Basics

Nonmedical benefits otherwise payable to an injured worker are reduced 50% where the injury results from the presence in the worker's system, during working hours, of controlled substances that are not medically prescribed or of a blood alcohol level at or above 0.10%, or at or above an applicable lower level as set forth by federal statute or regulation, as evidenced by a forensic drug or alcohol test conducted by a medical facility or laboratory licensed or certified to conduct such tests.

A duplicate sample from any test conducted must be preserved and made available to the worker for purposes of a second test to be conducted at the worker's expense. If the test indicates the presence of such substances or of alcohol at such level, it is presumed that the employee was intoxicated and that the injury was due to the intoxication. This presumption may be overcome by clear and convincing evidence.

Glossary Check

As used in this section, "nonmedical benefits" means all benefits other than disbursements for medical, surgical, nursing, and hospital services, apparatus, and supplies.

Case Example

SkyWestAirlines Inc. v. Industrial Claim Appeals Office, No.19CA1783 (Colo. Ct. App. 08/27/20). After an evening of drinking, a worker tried to get into a hotel room only to learn that he was at the wrong hotel and that his room key was for the hotel across the street. While walking to the correct hotel, he was struck by an automobile and died from his injuries. Because a second sample of the worker's blood had not been preserved, the employer could not take advantage of the 50% reduction in benefits. 

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