First Quarter 2017
By: Patrick Mack
Question: Under Kansas Law, if an employee tests positive for drugs, can the employer deny or limit benefits of his or her workers’ compensation claim?
Short Answer: Yes. In Kansas, no employee shall be awarded compensation under the Kansas Workers’ Compensation Act if the employee’s intoxication levels meet the statutory threshold (see below), and the employee’s intoxication levels contributed to the accident and injury.
The burden of proof is on the employer to prove the employee’s intoxication level. The burden of proof shifts to the employee to overcome a rebuttable presumption that the intoxication did not contribute to the accident and injury.
Discussion: Under Kansas law, K.S.A. § 44-501(b)(1) provides:
(b) (1) (A) The 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.
(B) 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.
(C) 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 metabolite1 15
- Cocaine metabolite2 150
- Morphine 2000
- Codeine 2000
- 6-Acetylmorphine 4 10 ng/ml
- Phencyclidine 25
- Amphetamine 500
- Methamphetamine 3 500
- Delta-9-tetrahydrocannabinol-9-carboxylic acid
- Specimen must also contain amphetamine at a concentration greater than or equal to 200 ng/ml.
- Test for 6-AM when morphine concentration exceeds 2,000 ng/ml.
(D) If it is shown that the employee was impaired pursuant to subsection (b)(1)(C) 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.
(E) 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 worker’s 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 post-injury testing.
In conclusion, an employee shall be denied benefits if an employer presents evidence that an employee was intoxicated by the statutory thresholds (listed above). The Kansas employer should always have a drug testing policy and that policy should be followed in all cases regardless of whether the reason involves a workers’ compensation claim. If a test is performed then the employer should request a split sample, so that both the employer and employee can hire doctors to test the sample.
The drug and alcohol laws in Kansas are very straightforward because of the statutory maximums for toxicity. Fights over these issues are rare if it is proven that the employee’s levels exceed the statutory maximum. In those rare cases where it is challenged, the challenges are to the toxicology level results and whether that the intoxication contributed to the accident.