Kentucky Governor Matt Bevin signed legislation that changes the state’s Workers’ Compensation Act in several ways, one of which is related to injuries resulting from the use of illegal, non-prescribed substances or prescribed substances over the prescription amount. If an employee was injured and underwent a drug test, the burden of proof was on the employer to show that the substance was the cause of the injury. Now the burden of proof is on the injured worker, which presumed that the substance was the cause of the injury until otherwise proven by the employee.

KRS 342.610(3) states that an employer is not liable for workers’ compensation in a case where the employee willfully intended to injure themselves or another. If an employee had voluntarily used illegal, non-prescribed substances or even prescribed substances in excess amounts as prescribed, it is presumed that the substance caused the injury and the employee is not eligible for compensation. The employee must show that the substance did not cause impairment or that the impairment did not cause the injury.

Employers who are certified as a Drug Free Workplace by the state Department of Workers’ Claims may receive a 5 percent discount on their comp premium. Employers should make sure that their drug testing program follows OSHA’s anti-retaliation provisions, limiting post-incident drug testing to situations in which employee drug use is likely to have contributed to the incident and for which the drug test can accurately identify the impairment cause by the drug use. Supervisors should take note of questionable behavior without discouraging employees from reporting a workplace injury.

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