(a) No compensation shall be allowed for an injury or death due to:
(1) The employee’s willful misconduct;
(2) The employee’s intentional self-inflicted injury;
(3) The employee’s intoxication or illegal drug usage;
(4) The employee’s willful failure or refusal to use a safety device;
(5) The employee’s willful failure to perform a duty required by law; or
(6) 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:
(A) Participation was expressly or impliedly required by the employer;
(B) Participation produced a direct benefit to the employer beyond improvement in employee health and morale;
(C) Participation was during employee’s work hours and was part of the employee’s work-related duties; or
(D) 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.
(b) 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.
(c) (1) 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 (.08%) for non-safety sensitive positions, or four hundredths of one percent (.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 a preponderance of the 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 (-20Â° 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.
(2) If the injured worker refuses to submit to a drug test, it shall be presumed, in the absence of a preponderance of the evidence to the contrary, that the proximate cause of the injury was the influence of drugs, as defined in § 50-9-103.
(3) The commissioner of labor and workforce development 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.]