S.D. Legislature Rejects Revision of Workers’ Compensation Law

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Rejected in the Legislature Friday was an attempt to revise state workers’ compensation law so injured employees who drink or use illegal drugs on the job must prove that those things were not substantial factors in causing their injuries.

Opponents convinced the House Judiciary Committee that HB1034 would be both unfair and costly for employees seeking to gain lost wages and payment of medical expenses.

The measure, which failed 2-11, was offered by the state Labor Department.

Current law requires employers to prove that drug or alcohol use were substantial factors in causing job-related injuries.

James Marsh, state Division of Labor and Management director, said the bill would send a message to employees about drinking and using drugs on the job. If they know that the burden of proof would be shifted to them, they may be less likely to use those substances, he said.

“In our view, it’s punishment by example,” Marsh said.

“If the employees can prove that the injury would have happened anyway … the employees would be entitled to benefits,” he added.

Business and workers’ compensation insurance lobbyists lined up in support of the bill. They said many workplace injuries are the result of substance abuse, and those employees should have to prove that use of drugs or alcohol were not major factors that contributed to their injuries.

Opponents said HB1034 would be unfair to employees because they would be stuck with the cost of hiring experts to prove that drug or alcohol use on the job were not substantial causes of their injuries.

Paul Aylward of the American Federation of State, County and Municipal Employees, said the measure wrongfully starts with the assumption that an injured employee is guilty instead of innocent. Employers have many other means of deterring workers from drug and alcohol use, he said, such as random screening for those substances.

“Don’t use the workers’ compensation system for public policy to discourage alcohol and drugs … on the job,” Aylward said.

Also urging rejection of the bill, Mark Anderson of the South Dakota State Federation of Labor said workers’ compensation insurance costs have declined 54 percent in South Dakota since 1993.

Rep. Roger Hunt, R-Brandon, said the measure would be an unfair economic burden on employees. He added that businesses already can deny workers’ compensation benefits for injuries and deaths if employers can show that drinking or drug use amounted to willful misconduct.