• New Ohio Workers' Compensation Law Creates Another Benefit To Having a Drug and Alcohol Testing Policy
  • July 28, 2004
  • Law Firm: Squire, Sanders & Dempsey L.L.P. - Cleveland Office
  • Ohio employers have a new tool to combat substance abuse in the workplace and defeat workers' compensation claims caused by drug or alcohol intoxication. Sub. H.B. 223, signed by Governor Taft on July 14, will take effect on October 12, 2004. The new law revives the statutory "rebuttable presumption" previously found unconstitutional by the Ohio Supreme Court in State ex rel. Ohio AFL-CIO v. Bureau of Workers' Compensation, 97 Ohio St.3d 504 (2002).

    The new law provides a legal presumption that an employee's intoxication proximately caused an industrial injury if the employee tests positive for drugs or alcohol on a qualifying chemical test administered after the injury or refuses to submit to a chemical test. In the past, employers had the difficult burden of proving not only that the employee was intoxicated but also that the employee's alcohol or drug use caused the workplace injury in order to avoid a legally compensable claim. The law shifts the burden of proof to the claimant when prompt drug and/or alcohol testing indicates legally significant levels of intoxication. The law also addresses the constitutional issues raised in the AFL-CIO case by establishing a reasonable cause standard for testing.

    To take advantage of this legislation, employers must comply with several requirements to meet the statutory definition of "qualifying chemical test," involving: (1) specific prior written notice requirements, (2) the circumstances of the testing (employer's reasonable suspicion, police officer traffic stop, or request of a licensed physician not employed by the employer) and (3) compliance with strict testing procedures and methods outlined in the new statute.

    Employers with drug and alcohol testing programs are advised to follow a well-drafted written policy and use federally certified laboratories, in addition to complying strictly with the statutory requirements outlined above. Employers may be eligible for Bureau of Workers' Compensation premium discounts by having a BWC-approved Drug-Free Workplace Program in place, including components such as training and a written policy.

    Note to unionized employers: Employers with employees represented by unions should remember that they may be subject to collective bargaining obligations before they put new drug and alcohol testing policies in place.