§1081. Defenses
Defenses.
(1)No compensation shall be allowed for an injury caused:
(a)by the injured employee's willful intention to injure himself or to injure
another, or
(b)by the injured employee's intoxication at the time of the injury, unless the
employee's intoxication resulted from activities which were in pursuit of the
employer's interests or in which the employer procured the intoxicating beverage or
substance and encouraged its use during the employee's work hours, or
(c)to the initial physical aggressor in an unprovoked physical altercation,
unless excessive force was used in retaliation against the initial aggressor.
(2)In determining whether or not an employer shall be exempt from and
relieved of paying compensation because of injury sustained by an employee for any
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§1081. Defenses
Defenses.
(1) No compensation shall be allowed for an injury caused:
(a) by the injured employee's willful intention to injure himself or to injure
another, or
(b) by the injured employee's intoxication at the time of the injury, unless the
employee's intoxication resulted from activities which were in pursuit of the
employer's interests or in which the employer procured the intoxicating beverage or
substance and encouraged its use during the employee's work hours, or
(c) to the initial physical aggressor in an unprovoked physical altercation,
unless excessive force was used in retaliation against the initial aggressor.
(2) In determining whether or not an employer shall be exempt from and
relieved of paying compensation because of injury sustained by an employee for any
cause or reason set forth in this Subsection, the burden of proof shall be upon the
employer.
(3) For purposes of proving intoxication, the employer may avail himself of
the following presumptions:
(a) If there was, at the time of the accident, 0.05 percent or less by weight of
alcohol in the employee's blood, it shall be presumed that the employee was not
intoxicated.
(b) If there was, at the time of the accident, in excess of 0.05 percent but less
than 0.08 percent by weight of alcohol in the employee's blood, such fact shall not
give rise to any presumption that the employee was or was not intoxicated, but such
fact may be considered with other competent evidence in determining whether the
employee was intoxicated.
(c) If there was, at the time of the accident, 0.08 percent or more by weight
of alcohol in the employee's blood, it shall be presumed that the employee was
intoxicated.
(4) Percent by weight of alcohol in the blood shall be based upon grams of
alcohol per one hundred cubic centimeters of blood.
(5) If there was, at the time of the accident, evidence of either on or off the
job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812,
Schedules I, II, III, IV, and V, it shall be presumed that the employee was intoxicated.
(6) The foregoing provisions of this Section shall not be construed as limiting
the introduction of any other competent evidence bearing upon the question of
whether the employee was under the influence of alcoholic beverages or any illegal
or controlled substance.
(7)(a) For purposes of this Section, the employer has the right to administer
drug and alcohol testing or demand that the employee submit himself to drug and
alcohol testing immediately after the alleged job accident.
(b) If the employee refuses to submit himself to drug and alcohol testing
immediately after the alleged job accident, then it shall be presumed that the
employee was intoxicated at the time of the accident.
(8) In order to support a finding of intoxication due to drug use, and a
presumption of causation due to such intoxication, the employer must prove the
employee's use of the controlled substance only by a preponderance of the evidence.
In meeting this burden, the results of employer-administered tests shall be considered
admissible evidence when those tests are the result of the testing for drug usage done
by the employer pursuant to a written and promulgated substance abuse rule or policy
established by the employer.
(9) All sample collection and testing for drugs under this Chapter shall be
performed in accordance with rules and regulations adopted by the assistant secretary which ensure the following:
(a) The collection of samples shall be performed under reasonably sanitary
conditions.
(b) Samples shall be collected and tested with due regard to the privacy of
the individual being tested, and in a manner reasonably calculated to prevent
substitutions or interference with the collection or testing of reliable samples.
(c) Sample collection shall be documented, and the documentation
procedures shall include:
(i) Labeling of samples so as reasonably to preclude the probability of
erroneous identification of test result; and
(ii) An opportunity for the employee to provide notification of any
information which he considers relevant to the test, including identification of
currently or recently used prescription or nonprescription drugs, or other relevant
medical information.
(d) Sample collection, storage, and transportation to the place of testing shall
be performed so as reasonably to preclude the probability of sample contamination
or adulteration; and
(e) Sample testing shall conform to scientifically accepted analytical methods
and procedures. Testing shall include verification or confirmation of any positive test
result by gas chromatography, gas chromatography-mass spectroscopy, or other
comparably reliable analytical method, before the result of any test may be used as
a basis for any disqualification pursuant to this Section. Test results which do not
exclude the possibility of passive inhalation of marijuana may not be used as a basis
for disqualification under this Chapter. However, test results which indicate that the
concentration of total urinary cannabinoids as determined by immunoassay equals or
exceeds fifty nanograms/ml shall exclude the possibility of passive inhalation.
(10) All information, interviews, reports, statements, memoranda, or test
results received by the employer through its drug testing program are confidential
communications and may not be used or received in evidence, obtained in discovery,
or disclosed in any public or private proceeding, except in a proceeding related to an
action under R.S. 23:1021 et seq. or R.S. 23:1601(10) in a claim for unemployment
compensation proceeding, hearing, or civil litigation when drug use by the tested
employee is relevant.
(11) No cause of action for defamation of character, libel, slander, or damage
to reputation arises in favor of any person against an employer who has established
a program of drug or alcohol testing in accordance with this Chapter and rules and
regulations adopted pursuant thereto, unless:
(a) The results of that test were disclosed to any person other than the
employer, an authorized employee or agent of the employer, the tested employee, or
the tested prospective employee or appropriate governmental agency or court.
(b) The information disclosed was based on a false test result; and
(c) All elements of an action for defamation of character, libel, slander, or
damage to reputation as established by statute or jurisprudence, are satisfied.
(12) Notwithstanding any language to the contrary, once the employer has
met the burden of proving intoxication at the time of the accident, it shall be
presumed that the accident was caused by the intoxication. The burden of proof then
is placed upon the employee to prove that the intoxication was not a contributing
cause of the accident in order to defeat the intoxication defense of the employer.
(13) In the event a health care provider delivers emergency care to an injured
worker later presumed or found to be intoxicated under this Section, the employer
shall be responsible for the reasonable medical care provided the worker until such
time as he is stabilized and ready for discharge from the acute care facility, at which
time the employer's responsibility shall end for medical and compensation benefits.
NOTE: Section 6 of Acts 2001, No. 781 provides that the provisions
of the Act shall become null and of no effect if and when Section 351
of P.L. 106-346 regarding the withholding of federal highway funds
for failure to enact a 0.08 percent blood alcohol level is repealed or
invalidated for any reason.