• Good News for Employers -- New Drug & Alcohol Standard Applies
  • May 7, 2003
  • Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
  • Good news for employers and business owners is on the horizon. On January 8, 2001, Governor Taft signed House Bill 122 which should prove to be beneficial to employers in the fight against alcohol and drug-related workplace accidents. The new law creates a rebuttable presumption that an injured employee's intoxication and/or controlled substance abuse is the proximate cause of his workplace injury if that employee tests positive for alcohol or a controlled substance not prescribed by his physician.

    House Bill 122 should significantly affect the manner in which alcohol or drug-related claims are evaluated. The rebuttable presumption created shifts the burden to the injured employee who tested positive to prove that the workplace injury did not occur because of his intoxication or controlled substance abuse. The Bill will effectively allow employers to challenge claims where the injured employee was clearly intoxicated and/or under the influence of a controlled substance, but no direct proof exists to link the injury to the employee's altered condition. Prior to the Bill, the absence of such proof would have likely resulted in an allowed claim.

    Requirements To Take Advantage Of The Rebuttable Presumption
    The Bill sets out certain conditions which must be followed before an employer is entitled to invoke the rebuttable presumption.

    • First, the employer must provide notice to employees that the results of a chemical test may affect the employee's eligibility for compensation. And employees who refuse the test must be told that their claim could well be denied. If the employee tests positive or the employee refuses the test, there is a rebuttable presumption that the employee was intoxicated or under the influence of a controlled substance which was the proximate cause of his workplace injury.

    • Second, the employee must be tested within a specified period of time after the injury. Chemical testing for alcohol must take place within eight hours of the injury. Chemical testing for controlled substances must take place within thirty-two hours of the injury.

    • Finally, positive chemical test results must be equal to or in excess of prescribed levels. For alcohol, the prescribed level is the same as the level established for drunk driving. For controlled substances, the Bill sets forth different levels based upon the type of test used and the substance detected.

    Practical Implications
    House Bill 122 becomes law and was effective April 10, 2001. In the meantime, employers should look carefully at their drug testing programs to ensure that the timing requirements set forth in the Bill will be met. Moreover, a method to insure that all employees receive the appropriate notice set forth in the legislation should be developed. In all likelihood, such notice will enforce and support most employers' existing workplace drug policies. In the end, however, all employers should be in a position to fully take advantage of the rebuttable presumption provided by House Bill 122, as it will undoubtedly result in reduced litigation and claim costs.