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H.B. 223 - rebuttable presumption

House Bill 223 (HB 223), also known as the rebuttable presumption law, became effective on Oct. 13, 2004. This law put the burden of proof on employees to prove that alcohol or drugs in their system were not the proximate cause of a workplace injury. This legislation is intended to curb substance abuse in the workplace.

The law allows employers to ask for disallowance of a workers' compensation claim filed by an employee who tests positive on a qualifying chemical test. The law also applies if the injured employee refuses the test. For the claim to be allowed, the injured employee must produce sufficient evidence to prove that being intoxicated by alcohol or being under the influence of any of nine controlled substances (not prescribed by the employee's physician) did not cause the injury.

As part of HB 223, BWC provides employers with a written notice along with their certificate of coverage (or self-insurance). Employers must post this notice to alert employees that they may not be eligible for workers' compensation benefits if they are injured while intoxicated or under the influence.

Notice: Employers who wish to contest a workers' compensation claim must post notice that is no smaller than the certificate of coverage in the same location as the certificate. Rebuttable presumption cannot be considered in relationship to a claim unless this written notice was properly posted before the accident leading to injury.

This law does not impact the policies or operations of BWCs Drug-Free Workplace Program (DFWP) or Drug-Free EZ (DF-EZ) Program for smaller employers. Post-accident, random and other forms of testing in BWCs drug-free workplace programs are still permissible and do NOT address claim compensability. Employers looking to buffer their legal liabilities and protect employee rights are well advised to consider participating in a BWC drug-free workplace program which offers discounts of up to 20 percent annually and helps keep your employees safe at work.

Related links
Written notice for private and self-insuring employers - Posting required
Written notice for public employers - Posting required
Written notice in Spanish
HB 223 - copy of legislation
Rebuttable presumption: Obtaining proper evidence