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2002 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 65.2-306 of the Code of Virginia is amended and reenacted as follows:
§ 65.2-306. When compensation not allowed for injury or death; burden of proof.
A. No compensation shall be awarded to the employee or his dependents for an injury or death caused by:
1. The employee's willful misconduct or intentional self-inflicted injury;
2. The employee's attempt to injure another;
3. The employee's intoxication;
4. The employee's willful failure or refusal to use a safety appliance or perform a duty required by statute;
5. The employee's willful breach of any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee; or
6. The employee's use of a nonprescribed controlled substance identified as such in Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1.
B. The person or entity asserting any of the defenses in this section shall
have the burden of proof with respect thereto. However, if the employer raises
as a defense the employee's intoxication or use of a nonprescribed controlled
substance identified as such in Chapter 34 of Title 54.1, and there was at the
time of the injury or death an amount of alcohol or nonprescribed controlled
substance in the bodily fluids of the employee which (i) is equal to or greater than the
standard set forth in § 18.2-266, or (ii) in the case of use of a nonprescribed
controlled substance, yields a positive test result from a Substance Abuse and
Mental Health Services Administration (SAMHSA) certified laboratory, there shall be
a rebuttable presumption, which presumption shall not be available if the
employee dies as a result of his injuries, that the employee was intoxicated
due to the consumption of alcohol or using a nonprescribed controlled
substance at the time of his injury or death. The employee may overcome such a
presumption by clear and convincing evidence.