WHAT IS THE STATUS OF AN EMPLOYER’S RIGHT TO REQUIRE  POST-INJURY DRUG TESTING?

January 2003

Ohio Revised Code § 4123.54(A)(2) excludes from workers’ compensation benefits any employee whose injury was “[c]aused by the employee being intoxicated or under the influence of a controlled substance . . . where the intoxication or being under the influence of a controlled substance .  .  .  was the proximate cause of the injury.”  Effective April 2001, the Ohio legislature amended that statute by adding how an employer may prove that its employee was intoxicated or under the influence of a controlled substance. Under the amendment, an employee’s refusal to take test or a positive test result provided a presumption that the injury was caused by alcohol or drug use thus affecting an employee’s eligibility for workers’ compensation benefits.  Before that amendment, the employer had the burden of proving that the employee’s drug or alcohol use was the proximate cause of the injury.

On December 18, 2002, the Ohio Supreme Court struck down the amendment to § 4123.54 as unconstitutional in State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers’ Compensation, 2002-Ohio-6717.  In a 4-3 ruling, the Ohio Supreme Court held that the “drug and alcohol testing of injured workers without any individualized suspicion of drug or alcohol use, violates the protections against unreasonable searches contained in the Fourth Amendment to the United States Constitution and Section 1, Article I of the Ohio Constitution.”  The Court found most objectionable the rebuttable presumption that an injury was caused by intoxication when an employee refuses to submit to a test the Court held that any need asserted by the state for the testing far outweighed an employee’s right to privacy.

In light of the Court’s ruling, a private employer may now wonder whether it may require post-accident/injury drug testing without reasonable suspicion.  The Ohio Supreme Court ruling does not preclude the right of private employers to require employees to take post-accident/incident drug tests.  The ruling is limited to the constitutionality of suspicionless post-injury testing by private employers pursuant to the amendments of  § 4123.54 (which subjected private employers to the federal and Ohio Constitutional provisions).  Employers are left where they were before the 2001 amendment of the statute.  That is, an employer is permitted to require post-injury drug tests and to utilize a positive test result as a defense to a workers’ compensation claim provided it meets its burden of proving that the drug or alcohol use was the proximate cause of the injury.  In addition, an employer may utilize a positive test result and the refusal to test to issue discipline.  In this regard, the Ohio Supreme Court noted in its decision that:  “While employers can set forth their own drug testing procedure for purposes of exposing employee misconduct, they cannot themselves use the test to affect an employee’s entitlement to workers’ compensation.” (Emphasis added.) A private employer’s right to require drug/alcohol testing in any circumstance is of course subject to limitations it may be subject to by collective bargaining agreements or the like.