NEW OHIO WORKERS’ COMPENSATION DRUG/ALCOHOL TESTING STATUTE ENACTED

August 2004

On July 14, 2004, Governor Taft signed Substitution House Bill 223 into law.  HB 223 amends Sections 4123.35 and 4123.54 of the Ohio Revised Code.  In summary, the new bill provides a rebuttable presumption that an employee’s injury was caused by the use of alcohol or an unprescribed drug when an employee either refuses to submit or tests positive to a “qualifying” chemical test.  An employer may use this rebuttable presumption defense under the condition that the employee was given notice, by way of a posted written notice in the workplace, that the results of or the employee’s refusal to submit to any chemical test may affect the employee’s eligibility for workers’ compensation benefits.  

Rebuttable Presumption

The previous statute (enacted in 2001) created the “rebuttable presumption defense”  in workers’ compensation claims even where suspicionless drug/alcohol testing was conducted.  In 2002 the Ohio Supreme Court held that statute unconstitutional on the basis that testing of injured workers without any individualized suspicion violated the protections against unreasonable searches in the U.S. and Ohio Constitutions. In redrafting the statute, the Ohio Legislature removed suspicionless testing and replaced it with specific conditions under which chemical testing of an employee may establish a rebuttable presumption defense to a workers’ compensation claim. The new statute provides that the rebuttable presumption defense may be used only if an employee tests positive to a “qualifying chemical test”.  Under O.R.C. Section 4123.54 (C) (1), “qualifying test” is defined as one that is administered:

1. after the employer had "reasonable cause" to suspect that an employee may be intoxicated or under the influence of a controlled substance not prescribed by a physician; or

2. at the request of a police officer pursuant to O.R.C. Section 4511.191; or

3. at the request of a licensed physician.

As in the previous statute, a rebuttable presumption exists if an employee refuses to submit to a qualified chemical test provided the employer gave the employee the required written notice of the consequences for refusing a test.

O.R.C. Section 4123.54 (C) (2) defines the term “reasonable cause” in detail.  The statute also provides that only laboratories certified by the U.S. Department of Health and Human Services or laboratories that meet or exceed the Department’s standards for certification shall be used for processing tests.

Effective Date and BWC’s Required Posting

The new statute goes into effect October 13, 2004.  Therefore, it may be applied to injuries arising on or after October 13, 2004, or on or after the date the required written notice to employees is posted, whichever is later.

Attached is the Bureau of Workers’ Compensation’s required posting for the new statute.  Prior to October 13, 2004, employers should post this notice in conspicuous locations at the workplace so it is viewable by all employees. It is also recommended that employers update their written drug/alcohol free policies in light of this new legislation and include the required notice in these policies and/or in their employee handbook(s).  In addition, employers should provide supervisors with training by appropriate medical professionals to enable supervisors to make “reasonable cause” determinations for testing in accordance with the statutory requirements.  All employees should be educated annually concerning the company’s drug/alcohol free policy and the dangers of substance abuse.

Statute’s Effect On Employer’s Current Drug-Alcohol Testing Policies

It is important to note that this new legislation only affects the use of drug/alcohol testing in workers’ compensation cases. It has no affect on a private employer’s current drug/alcohol testing policies.  To take advantage of the “rebuttable presumption” defense in a workers’ compensation claim, the employer must satisfy the notice requirements and the “reasonable cause” basis to test as set forth in the statute.

The previous rebuttable presumption statute was challenged almost immediately upon enactment.  While the legislature appears to have rectified the unconstitutional provisions of the previous bill, it is unknown whether the new statute will be challenged on any other legal basis.