New Mexico § 52-1-12.1 - Reduction in compensation when alcohol or drugs contribute to injury or death; exceptions

§ 52-1-12.1. Reduction in compensation when alcohol or drugs contribute to injury or death; exceptions

A. As used in this section, “ intoxication ” or “ influence ” means a temporary state or condition of impaired physical, mental or cognitive function

by means of alcohol, a drug, a controlled substance or a combination of two or more

substances at the time of injury or death. “Drug” or “controlled substance” pursuant to this section does not include medications

prescribed to a worker by the worker's licensed health care provider and taken in

accordance with directions of the prescribing health care provider or dispensing pharmacy,

unless such medication is combined with alcohol or a non-prescribed drug or controlled

substance to cause intoxication or influence. B. Except as otherwise provided in this section, compensation benefits otherwise due

and payable from an employer to the worker under the terms of the Workers' Compensation

Act shall be reduced by the degree to which the intoxication or influence contributes

to the worker's injury or death; provided that the reduction shall be a minimum of

ten percent but no more than ninety percent. C. Test results relied on as evidence of a worker's intoxication or influence shall

not be considered in making a reduction in compensation determination unless the test

and testing procedures conform with standard testing procedures generally accepted

in the medical community and the test is performed by a laboratory certified to do

the testing by an organization nationally recognized to do such certification. Testing may include testing methods for urine, breath or blood. D. The director shall adopt rules regarding tests, testing and the cutoff levels for

intoxication or influence. E. If a post-accident test pursuant to Subsection C of this section is required of

a worker and the worker refuses to submit to the test or to release the post-accident

test results to the employer, no compensation otherwise payable from an employer under

the terms of the Workers' Compensation Act shall be paid to the worker claiming compensation. F. Testing shall be at the employer's expense and shall not be used as evidence in

a criminal proceeding against the worker. Test samples shall be taken as a split sample. One part of the sample shall be held by the testing facility for twelve months from

the date of the original test. Within this twelve-month period, the worker has the right to request a second test

of the original sample at the worker's expense. G. An employer shall be barred from claiming a reduction in compensation pursuant

to this section if, before the accident, the employer has actual or constructive knowledge

of the worker's intoxication or influence and a reasonable opportunity to take appropriate

measures in response to the intoxication or influence but fails to take those measures. H. An employer shall be barred from claiming a reduction in compensation pursuant

to this section if the employer fails to implement a written policy that declares

a drug- and alcohol-free workplace, which may include post-accident testing in accordance

with this section, and that gives its employees notice that workers' compensation

benefits may be reduced in the event intoxication or influence contributes to a workplace

injury. I. Reduction or denial of compensation benefits authorized under this section shall

not affect payment of medical benefits provided for pursuant to Section 52-1-49 NMSA 1978 . J. Reduction or denial of compensation benefits authorized under this section shall

not affect payments of benefits to the dependents of a deceased worker pursuant to Section 52-1-46 NMSA 1978 .