An explanation of rebuttable presumption, affirmative defense, and how they impact workplace injury cases in Georgia
Injured workers are frequently asked to take a drug or alcohol test following their workplace injuries. Depending on the timing of the test, a positive drug or alcohol screening will give their employer a rebuttable presumption or an affirmative defense that the accident was caused by intoxication. In Georgia, this law is laid out in O.C.G.A. § 34-9-17(b)(1) and (2).
An injured worker cannot avoid an intoxication defense by refusing to take a drug or alcohol test, because an unjustifiable refusal to submit to a test also creates a rebuttable presumption that the accident was caused by intoxication.
However, the employee (and his or her attorney) may overcome these defenses by showing that the injury was not proximately caused by intoxication, or by challenging the drug or alcohol test itself.
What is a rebuttable presumption?
A “rebuttable presumption” is an assumption made by the court that is accepted as the truth, unless proven otherwise. In Georgia, a positive drug test administered within 8 hours of the injury — or a positive alcohol test administered within 3 hours of the injury — will be accepted by the court as proof that the employee was intoxicated at the time of the injury, unless the employee can prove that his or her injury wasn’t actually caused by their intoxication.
Employers also have a rebuttable presumption that the employee was intoxicated if he or she unjustifiably refuses to take a drug or alcohol test.
What is an affirmative defense?
An “affirmative defense” is a defense that has to be proven by the case defendant (i.e. the employer and their insurance company in a workers’ compensation claim). The employer and their insurance company are only entitled to the rebuttable presumption described above if the drug test was properly performed within 8 hours of the injury — or if the alcohol test was properly performed within 3 hours of the injury — or if the employee unjustifiably refuses the test.
It is more difficult for an employer to prevail on an intoxication defense if they have to rely on an affirmative defense, since they carry the burden of proving that the injured employee was intoxicated.
In comparison, the rebuttable presumption allows the employer to assume that the employee was intoxicated based on a timely or refused test.
For example, the employer may agree that the employee sustained an injury at work. However, if they prove by a “preponderance of the evidence” that the employee was intoxicated at the time of the injury, they may be excused from liability for the injury even without a positive or timely drug test.
The employer can prove their affirmative defense with a positive drug or alcohol test obtained outside of the requisite time window by securing testimony from witnesses that the employee was intoxicated when injured, or other factual evidence showing that the employee was intoxicated at the time of the injury.
What is an unjustifiable refusal of a drug or alcohol test?
In Georgia, employers can also use a rebuttable presumption that an employee’s injury was caused by intoxication if he or she refuses to submit to a drug or alcohol test. Whether or not the employee’s refusal to submit to the test was justifiable is a factual question that will be determined by an administrative law judge (ALJ).
Georgia courts have determined that it’s not justifiable for an employee to refuse to submit to a drug or alcohol test simply because the employer didn’t warn them that their claim would be denied if they refused the test. [Georgia Self-Insurers Guar. Trust Fund v. Thomas, 269 Ga. 560 (1998)].
It’s also not justifiable for an employee to refuse a test if even if they believe the test doesn’t comply with the Workers’ Compensation Act’s drug and alcohol testing guidelines.
So what is a justifiable refusal of a drug or alcohol test?
The Georgia Court of Appeals has previously suggested that an employee may justifiably refuse to submit to a test if the employer attempts to collect the specimen without regard to the employee’s privacy, or if the employer requires the employee to pay for the cost of the test. [Marine Port Terminals v. Dixon, 252 Ga. App. 340 (2001)].
What is considered a valid drug or alcohol test?
The Georgia Workers’ Compensation Act has strict requirements for how drug and alcohol testing should be conducted. These requirements are codified in O.C.G.A. § 34-9-415. The requirements cover not only the collection of the sample, but also the storage, labeling, and transportation of the sample, as well as who pays for the sample and the required qualifications for the laboratory analyzing the specimen.
If the employer or insurance company fails to follow any of these strict requirements, they will lose their right to use rebuttable presumption to show that the employee’s injury was caused by intoxication.
For example, in Lingo v. Early County Gin (decided by the Court of Appeals on June 1, 2018), the court determined that the employer couldn’t rely on the rebuttable presumption because the lab tech who collected the urine sample from the injured employee could not identify the identity or the occupation of the person who collected the sample.
An experienced Georgia workers’ compensation attorney can help pinpoint the shortfalls of the drug or alcohol test administered to the employee, and potentially avoid the presumption of intoxication altogether.
How can an injured worker overcome an intoxication defense?
Even when an employee fails a drug or alcohol test performed within the requisite time period, they may be still able to overcome the rebuttable presumption that their injury was caused by intoxication. To do so, the employee must demonstrate that their injury wasn’t “proximately caused” by being intoxicated.
The employee can “rebut the presumption” of a positive drug or alcohol test by proving one of the following elements:
- That he or she didn’t actually ingest alcohol or an illicit drug,
- That he or she didn’t ingest alcohol or drugs to the point of intoxication,
- That he or she wasn’t intoxicated at the time of the accident,
- That the accident wasn’t actually caused by intoxication,
- That he or she was justified in not taking the test, or
- That the test wasn’t properly administered by the employer and insurance company.
Often, the testimony of the injured worker and witnesses will be used to support the employee’s argument. An injured worker should work with an experienced attorney to determine the best strategy for overcoming a positive alcohol or drug test.
If you have been injured on the job and are concerned your case could be denied for a positive drug or alcohol test, contact the knowledgeable attorneys at Gerber & Holder to discuss your case. We will be happy to provide a free case evaluation to determine the best strategy for your case.