SAFE HARBOR PROVISION
This section examines the "safe harbor" provision of the newly enacted intoxication bill. The relevant parts of the law for the purposes of this, are the "safe harbor" provision of the statute is found in subsection A of the statute.
This section examines the "safe harbor" provision of the newly enacted intoxication bill. The relevant parts of the law for the purposes of this, are the "safe harbor" provision of the statute is found in subsection A of the statute, stating:
"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.
In syllogism form, this would look something like this:
-A Worker is "intoxicated" or "under the influence" when using a "drug" or "controlled substance"
- A Workers compensation benefits will be reduced if the "intoxication" was a contributing factor in the accident.
- A medication prescribed by a licensed doctor and used as prescribed cannot be a "drug" "controlled substance"
-Cannabis is a medication that was prescribed to Worker and was used as prescribed
-Thus, cannabis is not a "drug"or "controlled substance"
- Ergo, Worker cannot be "intoxicated" or "under the influence"
Therefore, prescribed cannabis cannot be used to reduce Worker's compensation benefits.
Note that the two requirements under the "safe harbor" provision, are that (1) the medication was prescribed by a licensed doctor and (2) was taken in accordance with the directions of the pharmacy or doctor.
I highlighted medical cannabis for two reasons: first, it is not typically prescribed with a particular dosage, unlike narcotics; secondly, the pharmacy does not issue use directions or warning labels.
If you have ever been seriously injured, you have likely received narcotic medication as some point in your life. Narcotic medication typically contains a warning label such as this:
|Pharmacy Name: (Name)|
|Name: (Your Name)|
|Drug : Name|
|Prescription: TAKE 1 TABLET BY MOUTH 4-6 HOURS OR AS NEEDED.|
|Qty:___ /__refills before (date)|
|Pharmacy Phone: (Number)|
|MAY IMPAIR ABILITY TO DRIVE OR OPERATE MACHINERY, MAY CAUSE SLOW HEART BEAT, FAINTING, CONFUSION, FEAR, SEIZURE, PROBLEMAS WITH URINATION, NAUSEA, STOMACH PAIN, ITCHING, OR JAUNDICE.|
|TAKE THIS MEDICATION WITH WATER|
Thus, if a court decides that the warning label for narcotic pain medication constitutes directions, then taking narcotic pain medication and then operating heavy machinery, could serve as a basis. Comparatively, medical cannabis contains no such warning label in this state, instead the labels are humorous:
BE CAREFUL, MARIJUANA MAY CAUSE: INTELLIGENT THOUGHT, PEACEFULNESS, BLISS, LOVE AND THE FEELING OF ONENESS WITH OUR SURROUNDINGS.
The takeaway from this, is that as long as the Worker is using the medication that is prescribed, in the way it was prescribed, there should be no decrease or reduction in benefits.
For broader analysis of the Intoxication Bill, click here.
 Although the question of whether the standard warning label on narcotics would constitute directions will be unresolved for some time.
 A "safe harbor" safe harbor is a provision of a statute or a regulation that specifies that certain conduct will be deemed not to violate a given rule. It is usually found in connection with a vaguer, overall standard. Wikipedia.
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Justin Pizzonia has been in practice as a workers' compensation and personal injury attorney in Albuquerque since 2010. Recently voted "Rising Star" by Super Lawyers, Justin excels in caring for his clients, and works tirelessly to obtain fair results.