- Drug Testing & Rebuttable Presumption - HB-223
- June 30, 2011
- Law Firm: Stefanski Associates LLC - Youngstown Office
On July 14, 2004, Governor Robert Taft signed Substitute House Bill 223 providing for chemical testing of injured workers. The law will go into effect October 13, 2004.
This recent legislative enactment is in response to the Ohio Supreme Court's decision in State ex rel. Ohio AFL-CIO v. Ohio Bur. of Workers' Compensation (2002), which ruled that the prior law which permitted warrantless drug and alcohol testing of injured workers without individual suspicion of drug or alcohol use unconstitutional. The court also found that the testing requirements violated an individuals right of privacy. The most recent legislative enactment signed by Governor is in response to that decision.
The new law creates a "rebuttable presumption" that alcohol or drug use caused an injury if after a "qualifying" chemical test, certain detection levels are met. These levels of alcohol or drug intoxication are the same as were present in the prior law. The rebuttal presumption exists also if the employee refuses to submit to a requested test after having been given notice that the refusal to comply with the test may effect eligibility for benefits.
A "qualifying test" is one administered:
A) after the employer had reasonable cause to suspect intoxication;
B) at the request of a police officer pursuant to Revised Code 4511.191 (dealing with driving under the influence); or
C) at the request of a licensed physician.
Reasonable cause is defined as evidence that an employee is or was using alcohol or a controlled substance drawn from specific, objective facts and reasonable inferences drawn from these facts in light experience and training. These facts and inferences may be based on, but not limited to, any of the following:
a) Observable phenomena, such as direct observation of use, possession, or distribution of alcohol or a controlled substance, or of the physical symptoms of being under the influence of alcohol or a controlled substance, such as but not limited to slurred speech, dilated pupils, odor of alcohol or a controlled substance, changes in affect, or dynamic mood swings;
b) A pattern of abnormal conduct, erratic of aberrant behavior, or deteriorating work performance such a frequent absenteeism, excessive tardiness, or recurrent accidents, that appears to be related to the use of alcohol or a controlled substance, and does not appear to be attributable to other factors;
c) The identification of an employee as the focus of a criminal investigation into unauthorized possession, use, or trafficking of a controlled substance;
d) A report of use of alcohol or a controlled substance provided by a reliable and credible source; and/or
e) Repeated or flagrant violations of the safety or work rules of the employee's employer, that are determined by the employee's supervisor to pose a substantial risk of physical injury or property damage and that appear to be related to the use of alcohol or a controlled substance and that do not appear attributable to other factors.
The statute also requires that the laboratories used by an employer be certified by the United States Department of Health and Human Services or meet or exceed the standards established by the Department for laboratory certification.
The statute also requires a written notice to employees at least as large as the size of the certificate of coverage issued by the Bureau of Workers' Compensation be posted at all employer locations along with your BWC certificate of coverage. A posting located at employee information boards or time clocks would meet this requirement.
Written notice to employees should include the following language:
NOTICE TO ALL EMPLOYEES
Pursuant to Ohio Revised Code 4123.54, the results of or an employee's refusal to submit to any chemical test devised to detect the presence of alcohol or other chemical substances in the blood stream may effect the employees eligibility for workers' compensation benefits pursuant to Chapters 4123 and 4121 of the Ohio Revised Code.
A positive drug test result or any refusal to take a scheduled test shall create rebuttal presumption that an employee is intoxicated or under the influence of a controlled substance not prescribed by the employee=s physician and that such intoxication or such influence of a controlled substance not prescribed by the employees physician is the proximate cause of an injury.
In compliance with this statute, &under;&under;&under;&under;&under;&under;&under;&under;(Company)&under;&under;&under;&under;&under;&under;&under;&under;&under;&under; shall require employees to complete a qualifying chemical test within eight hours of injury or within 32 hours to provide a valid urine sample to determine whether one of the following substances are present in the employee's system: Amphetamines, Cannabinoids, Cocaine, Crack Cocaine, Opiates, Phencyclidine, Barbiturates, Benzodiazepines, Methadone, and Proxiphene.
A positive result will be considered a violation of the Company's substance abuse police and may subject the employee to discharge up to and including discharge from employment. If you have a drug or alcohol problem and wish to seek help contact Human Resources for assistance.
Including language about your company's employee assistance or other programs would be helpful.
For questions concerning the application of this legislation or to discuss updating your policies or handbooks, please contact one of our offices.