Tennessee § 50-6-110 - Injuries not covered — Drug and alcohol testing.

§ 50-6-110. Injuries not covered — Drug and alcohol testing.

No compensation shall be allowed for an injury or death due to: The employee's willful misconduct; The employee's intentional self-inflicted injury; The employee's intoxication or illegal drug usage; The employee's willful failure or refusal to use a safety device; The employee's willful failure to perform a duty required by law; or The employee's voluntary participation in recreational, social, athletic or exercise activities, including, but not limited to, athletic events, competitions, parties, picnics, or exercise programs, whether or not the employer pays some or all of the costs of the activities unless: Participation was expressly or impliedly required by the employer; Participation produced a direct benefit to the employer beyond improvement in employee health and morale; Participation was during employee's work hours and was part of the employee's work-related duties; or The injury occurred due to an unsafe condition during voluntary participation using facilities designated by, furnished by or maintained by the employer on or off the employer's premises and the employer had actual knowledge of the unsafe condition and failed to curtail the activity or program or cure the unsafe condition. If the employer defends on the ground that the injury arose in any or all of the ways stated in subsection (a), the burden of proof shall be on the employer to establish the defense. In cases where the employer has implemented a drug-free workplace pursuant to chapter 9 of this title, if the injured employee has, at the time of the injury, a blood alcohol concentration level equal to or greater than eight hundredths of one percent (0.08%) for non-safety sensitive positions, or four hundredths of one percent (0.04%) for safety-sensitive positions, as determined by blood or breath testing, or if the injured employee has a positive confirmation of a drug as defined in § 50-9-103, then it is presumed that the drug or alcohol was the proximate cause of the injury. This presumption may be rebutted by clear and convincing evidence that the drug or alcohol was not the proximate cause of injury. Percent by weight of alcohol in the blood must be based upon grams of alcohol per one hundred milliliters (100 mL) of blood. If the results are positive, the testing facility must maintain the specimen for a minimum of three hundred sixty-five (365) days at minus twenty degrees celsius (-20° C.). Blood serum may be used for testing purposes under this chapter; provided, however, that if this test is used, the presumptions under this section do not arise unless the blood alcohol level is proved to be medically and scientifically equivalent to or greater than the comparable blood alcohol level that would have been obtained if the test were based on percent by weight of alcohol in the blood. However, if, before the accident, the employer had actual knowledge of and acquiesced in the employee's presence at the workplace while under the influence of alcohol or drugs, the employer retains the burden of proof in asserting any defense under subsections (a) and (b), and this subsection (c) does not apply. If the injured worker refuses to submit to a drug test, it shall be presumed, in the absence of clear and convincing evidence to the contrary, that the proximate cause of the injury was the influence of drugs, as defined in § 50-9-103. The administrator of the bureau of workers' compensation shall provide, by rule, for the authorization and regulation of drug testing policies, procedures and methods. Testing of injured employees pursuant to a drug-free workplace program under chapter 9 of this title shall not commence until the rules are adopted. Acts 1919, ch. 123, § 10; Shan. Supp., § 3608a159; Code 1932, § 6861; T.C.A. (orig. ed.), § 50-910; Acts 1994, ch. 765, § 1; 1996, ch. 944, § 49; 1999, ch. 520, § 41; 2005, ch. 390, § 1; 2009, ch. 407, § 1; 2011, ch. 203, §§ 1, 2; 2013, ch. 282, § 1; 2015, ch. 341, § 15. Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.” Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator of the division of workers' compensation” for “commissioner of labor workforce and development” in (c)(3). The 2015 amendment substituted “bureau” for “division” in (c)(3). Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014. Acts 2015, ch. 341, § 19. May 4, 2015. Cross-References. Waiver of compensation for aggravation of occupational disease, § 50-6-307 . Workers' Compensation Appeals Board Decisions. An employee, a crew member of a tree and brush control company, suffered serious injuries when he was pulled into a wood chipper. The employer denied the claim, asserting the employee would not have been hurt unless he violated a safety rule. Following a trial, the court found the employee had sustained a compensable injury and the employer had not established the willful violation of a safety rule. The employer has appealed. In order to prevail on the affirmative defense of willful misconduct, an employer must establish the following: (1) the employee's actual, as opposed to constructive, notice of the rule; (2) the employee's understanding of the danger involved in violating the rule; (3) the employer's bona fide enforcement of the rule; and (4) the employee's lack of a valid excuse for violating the rule. However, before this test becomes applicable, it must be shown there was an actual violation of a rule. The employer did not establish by the greater weight of the evidence the existence of a rule violation in the first place. The greater weight of the evidence did not point to the employee having committed misconduct or having violated a safety rule, much less that he did so willfully as required by statute. As a result, the trial court's finding that the employee's injuries are compensable was affirmed. Hardin v. W.A. Kendall & Co., Inc., 2019 TN Wrk Comp App Bd LEXIS 23. An employee, a stagehand union worker responsible for erecting and tearing down spaces for conferences and trade shows, was injured when a cart fell over on him. He received some authorized medical care before the employer denied the claim on the basis of a positive drug screen. The employer also asserted the employee violated a known safety rule. With respect to the employer's intoxication defense, the trial court concluded that the employer presented insufficient proof of this affirmative defense. The employer asserted the trial court erred in reaching that conclusion, but it provided no evidence in support of its defense other than a positive drug screen. It offered no testimony from any witness that the employee appeared impaired on the date of the accident. It presented no expert medical opinion that the levels of THC or oxycodone reflected on the drug screen would have caused impairment. In short, it offered no evidence that the employee's alleged illegal drug use was the proximate cause of his injuries. The trial court also concluded the employer had not come forward with evidence to satisfy the four elements of its willful misconduct defense based on the employee's alleged violation of its “push, don't pull” safety rule. The trial court reviewed the video evidence and did not conclude it showed the employee violating the employer's safety rule while attempting to manipulate the loaded cart. Moreover, it concluded there was scant evidence of the employer's bona fide enforcement of the “push, don’t pull” rule. Again, the employer presented no meaningful argument as to how the trial court erred in its analysis of the willful misconduct defense. The trial court’s decision was affirmed. Woodard v. Freeman Expositions, LLC, 2020 TN Wrk Comp App Bd LEXIS 15.