Tough Legal Questions For Employers Regarding Post-Accident Drug Testing

Ohio lawmakers remain on track for making medical marijuana available by September of 2018. Employers are now faced with new challenges surrounding post-accident drug testing. Very recently, the Occupational Safety and Health Administration (“OSHA”) suggested that, in some circumstances, it considers post-accident drug testing a violation of OSHA regulations. The Ohio Supreme Court just issued a decision granting temporary total disability compensation (“TTD”) to an employee fired after his post-accident drug test was positive. What are employers to make of all of this? This article aims to clear up some of the confusion.

A positive post-accident drug test does not bar workers’ compensation benefits in Ohio

The Ohio Supreme Court recently addressed post-accident drug testing in State ex rel. Cordell v. Pallet Cos., Inc.   Cordell involved an Ohio employee terminated after testing positive for marijuana on a routine post-accident drug test. His employer denied TTD because he was terminated pursuant to the company’s drug testing policy. The Court did not challenge legality of the termination.  However, it held that the employer was still responsible for paying TTD because: a) the dischargeable offense was discovered as the result of a work injury; and b) at the time of his termination, the employee was medically incapable of returning to work.

OSHA’s take

In an interpretation of rules requiring electronic submission of injury reporting forms OSHA stated that, in certain situations, it may actually consider post-accident drug testing a form of adverse action against an employee for reporting an injury. OSHA stated that employers should “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” Here is a link OSHA’s interpretation of the provision.

What does this mean for Ohio employers?

In response to concerns that OSHA’s interpretation will conflict with state workers’ compensation laws, the agency stated that “if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing.”   Ohio Revised Code §4123.54(A)(2) provides that, under certain circumstances, a positive drug test creates a rebuttable presumption that drug use was the cause of the injury, which is therefore not compensable. To be a “qualifying test” the employer must have “reasonable cause” to suspect that the employee is under the influence. The Ohio BWC also has a Drug Free Safety Program (“DFSP”) that provides for post-accident testing. Employers who conduct testing pursuant to R.C. §4123.54(A)(2) or the DFSP should not run afoul of the new OSHA interpretation. They should keep in mind however, that the DFSP does not mandate testing for minor injuries with no reasonable suspicion of drug use, and R.C. §4123.54’s language regarding “reasonable cause.”

As society’s attitudes regarding marijuana change, it will take some time for the law to catch up. Ohio employers should keep a close eye on future developments and consult with an attorney to address any specific situations.

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