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Summary of differences between federal and state regulations
Workers’ compensation
New Mexico’s workers’ compensation law allows for denial of benefits to an employee if the injury was caused by the employee’s intoxication or being under the influence of a controlled substance not prescribed. The law also provides for a reduction in benefits of 10 to 90 percent when alcohol or drugs contributed to the injury or death of the employee.
Any tests conducted to determine if an employee was under the influence must conform with standard testing procedures generally accepted in the medical community. A test must be performed by a certified laboratory. Urine, breath, or blood testing methods may be used. No compensation shall be paid if the worker refuses to test or refuses to release test results.
The employer must pay for the test and cannot use the test as evidence in a criminal proceeding against the worker. Workers’ compensation benefits will not be reduced if an employer has actual or constructive knowledge of the worker’s intoxication or that a worker is under the influence and has reasonable opportunity to take appropriate measures, but fails to take those measures.
In order to claim a reduction of benefits, an employer must implement a written policy that declares a drug- and alcohol-free workplace, which may include post-accident testing. An employer must give employees notice that workers’ compensation benefits may be reduced in the event intoxication or being under the influence contributes to a workplace injury.
State
Contacts
State of New Mexico—Workers’ Compensation Administration
Regulations
Workers’ compensation
New Mexico Statutes, §§52-1-11 – 52-1-12.1.
(Browse to Chapter 52, Article 1.)
Federal
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Contacts
Drug testing rules
U.S. Department of Transportation
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance document