New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 4 - WORKERS' COMPENSATION
Part 3 - PAYMENT OF CLAIMS, POST-ACCIDENT DRUG AND ALCOHOL TESTING, AND CONDUCT OF PARTIES
Section 11.4.3.12 - POST-ACCIDENT DRUG AND ALCOHOL TESTING

(1) This section establishes regulations for post-accident drug and alcohol testing pursuant to Section 52-1-12.1 NMSA 1978.

(2) These rules are not intended to supersede other laws and are only intended to establish post-accident testing protocols and cut off levels as required by Section 52-1-12.1 NMSA 1978. Nothing in these rules shall prohibit an employer from conducting any drug or alcohol testing of employees which is otherwise permitted by law.

(3) If the worker requires emergency medical attention, medical treatment shall not be delayed to collect a drug or alcohol sample, provided that sample collection may occur in conjunction with the provision of medical treatment.

(4) A party may call a health care provider, toxicologist or similar forensic specialist as an expert witness to assist the workers' compensation judge in determining the degree to which intoxication or influence contributed to the worker's injury or death.

(1) "Actual knowledge" means direct observation, by a supervisor or manager of the employer, of the consumption or use of drugs, alcohol or combination thereof, or of the clear physical symptoms or manifestations of intoxication or influence of the worker, or worker's admission to consumption or use of drugs or alcohol made to a supervisor or manager.

(2) "Alcohol" means the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols, including methyl and isopropyl alcohol.

(3) "Confirmatory test" or "confirmatory drug test" means a second analytical procedure performed on the original sample used to identify and quantify the presence of a specific drug or drug metabolite.

(4) "Constructive knowledge" means that a supervisor or manager of the employer, by exercise of reasonable diligence, should have had actual knowledge that the injured worker was impaired on the date of the workplace accident.

(5) "Drug" means any chemical agent that affects living processes and has the potential to impair those processes, including, but not limited to, substances listed under the New Mexico Controlled Substances Act. "Drug or controlled substance" 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.

(6) "Initial test" or "initial drug test" means a screening test used to differentiate a negative specimen from one that requires further testing for drugs or drug metabolites.

(7) "Implement" or "implemented" means that the employer has put into effect and enforces a written policy on drug and alcohol use in the workplace.

(8) "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.

(9) "Refusal to submit" means a worker who, by words or actions, refuses to submit to a drug or alcohol test, fails to appear for a test, fails to complete a test, fails to cooperate with collection of a sample, or otherwise intentionally conceals him or herself or makes him or herself unavailable to test.

(10) "Testing facility" as referenced in Section 52-1-12.1(F) means a testing facility selected by the employer to test a sample.

(1) To comply with the provisions of Section 52-1-12.1(H), the employer's written drug and alcohol policy shall:

(2) Notice of the policy may be given to workers through any of the following methods: posting the policy in a conspicuous place, including the policy in an employee policy handbook, having the worker sign an acknowledgement form that is placed in the worker's personnel file, a wallet card, a flyer inserted semi-annually with pay checks, or any other method employer reasonably believes will be successful in alerting the worker.

(1) Test samples, whether urine, breath or blood, shall only be collected by facilities, medical providers, or health care providers certified to collect such samples, provided that nothing prohibits an employer from relying on testing performed by law enforcement pursuant to the New Mexico Implied Consent Act.

(2) Sample collection, testing, and storage methods shall substantially comply with generally accepted standards in the medical or scientific community, which may include standards established by the federal Department of Transportation, the New Mexico Department of Transportation, the federal Substance Abuse and Mental Health Administration, or the New Mexico State Personnel Office.

(3) Post-accident alcohol testing shall be conducted as soon as practicable after the accident. Any post-accident alcohol test conducted more than 8 hours after the accident shall not be relied upon to reduce benefits under Section 52-1-12.1, unless the worker intentionally caused the delay in the testing.

(4) Post-accident drug testing shall be conducted as soon as practicable after the accident. Any post-accident drug test conducted more than 32 hours after the accident shall not be relied upon to reduce benefits under Section 52-1-12.1, unless the worker intentionally caused the delay in the testing.

(5) A worker who requests a second test of an original sample shall be responsible for any costs associated with the testing of that sample. The worker shall provide timely written notice of the worker's request for a second test to the laboratory or custodian of the sample and to the employer.

(6) Provisions set forth in Section 52-1-12.1(F) requiring storage of samples shall only apply to testing facilities selected by the employer and shall not apply to hospitals or facilities providing emergency medical care to the worker.

(7) Cut off concentration levels for intoxication or influence

(8) The employer shall provide a copy of the test results to the worker if relied upon to reduce benefits or upon worker's request.