A. As used in this section, "intoxication" or "influence" means a temporary state or condition of impaired physical, mental or cognitive function by means of alcohol, a drug, a controlled substance or a combination of two or more substances at the time of injury or death. "Drug" or "controlled substance" pursuant to this section does not include medications prescribed to a worker by the worker's licensed health care provider and taken in accordance with directions of the prescribing health care provider or dispensing pharmacy, unless such medication is combined with alcohol or a non-prescribed drug or controlled substance to cause intoxication or influence.

B. Except as otherwise provided in this section, compensation benefits otherwise due and payable from an employer to the worker under the terms of the Workers' Compensation Act shall be reduced by the degree to which the intoxication or influence contributes to the worker's injury or death; provided that the reduction shall be a minimum of ten percent but no more than ninety percent.

C. Test results relied on as evidence of a worker's intoxication or influence shall not be considered in making a reduction in compensation determination unless the test and testing procedures conform with standard testing procedures generally accepted in the medical community and the test is performed by a laboratory certified to do the testing by an organization nationally recognized to do such certification. Testing may include testing methods for urine, breath or blood.

D. The director shall adopt rules regarding tests, testing and the cutoff levels for intoxication or influence.

E. If a post-accident test pursuant to Subsection C of this section is required of a worker and the worker refuses to submit to the test or to release the post-accident test results to the employer, no compensation otherwise payable from an employer under the terms of the Workers' Compensation Act shall be paid to the worker claiming compensation.

F. Testing shall be at the employer's expense and shall not be used as evidence in a criminal proceeding against the worker. Test samples shall be taken as a split sample. One part of the sample shall be held by the testing facility for twelve months from the date of the original test. Within this twelve-month period, the worker has the right to request a second test of the original sample at the worker's expense.

G. An employer shall be barred from claiming a reduction in compensation pursuant to this section if, before the accident, the employer has actual or constructive knowledge of the worker's intoxication or influence and a reasonable opportunity to take appropriate measures in response to the intoxication or influence but fails to take those measures.

H. An employer shall be barred from claiming a reduction in compensation pursuant to this section if the employer fails to implement a written policy that declares a drug- and alcohol-free workplace, which may include post-accident testing in accordance with this section, and that gives its employees notice that workers' compensation benefits may be reduced in the event intoxication or influence contributes to a workplace injury.

I. Reduction or denial of compensation benefits authorized under this section shall not affect payment of medical benefits provided for pursuant to Section 52-1-49 NMSA 1978.

J. Reduction or denial of compensation benefits authorized under this section shall not affect payments of benefits to the dependents of a deceased worker pursuant to Section 52-1-46 NMSA 1978.

History: 1978 Comp., § 52-1-12.1, enacted by Laws 2001, ch. 87, § 1; 2016, ch. 24, § 2.

The 2016 amendment, effective May 18, 2016, provided that workers' compensation benefits be reduced by the degree to which the influence of alcohol or drugs contributed to a worker's injury or death, and provided for exceptions; in the catchline, added "exceptions", deleted the former language of the section in its entirety and added new Subsections A through J.

Injury was not solely occasioned by worker's intoxication. — Section 52-1-12.1 NMSA 1978, not Section 52-1-11 NMSA 1978, is applicable where there is substantial evidence that supports a contributing cause to the worker's injury in addition to the worker's intoxication. Villa v. City of Las Cruces, 2010-NMCA-099, 148 N.M. 668, 241 P.3d 1108, cert. denied, 2010-NMCERT-009, 149 N.M. 49, 243 P.3d 753.

Where worker was intoxicated when worker started work and at the time of the accident; worker had been driving a garbage truck for at least an hour before the accident and did not hit anything; worker walked around on the top of the truck without difficulty; a co-worker did not notice a problem with worker's demeanor; worker's supervisor and co-worker observed worker climb up on the truck without noticing anything amiss; and worker was standing on a narrow ledge of the truck attempting to attach a chain to a dumpster when worker slipped and fell, worker's intoxication was not the sole, but only a contributing, cause of the worker's injury and Section 52-1-12.1 NMSA 1978, not Section 52-1-11 NMSA 1978, applied. Villa v. City of Las Cruces, 2010-NMCA-099, 148 N.M. 668, 241 P.3d 1108, cert. denied, 2010-NMCERT-009, 149 N.M. 49, 243 P.3d 753.

Methamphetamine and amphetamine are included as stimulant drugs. — The legislature intended to include methamphetamine and amphetamine as stimulant drugs under Section 52-1-12.1 NMSA 1978 even though the legislature removed the definition of "depressant, stimulant or hallucinogenic" drugs in the 1972 amendment of Section 54-6-27 NMSA 1978 of the New Mexico Drug and Cosmetic Act. Ortiz v. Overland Express, 2010-NMSC-021, 148 N.M. 405, 237 P.3d 707, rev'g 2009-NMCA-041, 146 N.M. 170, 207 P.3d 1147.