Amended Post-Accident Drug Testing Law to Help Employers in Workers’ Compensation Claims
By Jerry P. Cline
The Ohio Legislature has recently amended a law that assists employers with work accidents involving alcohol or illegal drugs. The new law, which currently awaits Governor Taft’s signature, says that an injured worker who either (1) tests positive for a post-accident alcohol and/or controlled substance test or (2) refuses to be tested, creates a rebuttable presumption that an employee’s injury was the result of being under the influence. Under these circumstances, the claim is not compensable and the burden shifts to the employee to prove that he was either not under the influence at the time of the injury, or that being under the influence did not cause the injury.
There are some important changes to note. First, Ohio employers must post a written notice indicating that the results of a post-accident drug/alcohol test , or the refusal to submit to such a test, might affect the employee’s eligibility for compensation and benefits under the workers’ compensation statutes. This is a significant departure from the old law, a rather vague requirement which provided only that the employee be given some “notice” of the consequences of a positive drug/alcohol test or refusal to submit to such a test. The type of notice required was never specified or formalized in writing.
The new provision also indicates that only a “qualifying” chemical test may be used to create a rebuttable presumption. Generally speaking, a chemical test is “qualifying” if the employer had reasonable cause to suspect alcohol and/or controlled substance involvement in the work-related injury. “Reasonable cause” is described in the Ohio Revised Code in some detail and is at the heart of the new amendment. Specifically, reasonable cause means, but is not limited to, “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 of experience and training.”
If the Governor does sign the bill as anticipated, it will go into effect ninety days following the signing.
RB&S attorneys keep on top of all developing legislation in the workers’ compensation arena. If you have any questions or concerns, please do not hesitate to contact Jerry Cline and the rest of the group for more information.