What You Need to Know about Drug Testing in Workers’ Compensation Claims

Under Ohio law, injuries sustained as the result of drug or alcohol use are not covered under the workers’ compensation system.  The Ohio legislature also provided a very specific set of circumstances in which it is presumed that a workplace accident was the result of alcohol or drug use. Unfortunately, the Code section itself, Ohio Revised Code Section 4123.54(B), is extremely confusing.

This post is an attempt to explain what the provisions of Ohio Revised Code Section 4123.54(B) are, and provide some guidelines for employers to remember in order to give themselves the best chance of getting a claim denied as the result of drug or alcohol use.

It’s important to remember several things regarding the drug and alcohol statute.  First of all, a positive test only creates a rebuttable presumption that the injury was drug or alcohol related.  The employee still has the opportunity to prove that drug or alcohol use had nothing to do with their injury.

Also, employers should give notice of their intent to drug test post-accident. If an employer fails to provide proper notice, the rebuttable presumption will not apply to an employee who refuses to take a drug test.

There are also a number of things to keep in mind to make sure that an employer’s drug test meets the requirements of the statute.  First of all, the test must be administered in a certain narrow window of time following the injury.  The test also cannot be used to establish that drugs or alcohol caused the injury if it was ordered by the employer, unless the employer had “reasonable cause” to suspect drug use.  I’ll address each of these elements briefly below.

Time-Frame

In order to meet the legal requirements, a test for alcohol must be performed within eight hours of the injury.  A test for drugs must be performed within thirty-two hours of the injury.

Who ordered the test?

In order to be a “qualifying chemical test” under the law, the drug test can only be ordered under one of the following three circumstances:

• the test is performed at the request of a police officer, not at the request of the employer;
• the test is performed at the request of a licensed physician, not at the request of the employer; or
• the employer has reasonable cause to suspect drug or alcohol use and orders the test.

What constitutes “reasonable cause” to suspect drug use?

Ohio Revised Code Section 4123.54(B) sets out 5 different circumstances under which an employer has “reasonable cause” to suspect drug use:

1. Direct observation of use, possession, or distribution of alcohol, a controlled substance, or marijuana or

1. • The physical symptoms of being under the influence of alcohol, a controlled substance, or marijuana, such as but not limited to
     • slurred speech
     • dilated pupils
     • odor of alcohol, a controlled substance, or marijuana;
     • changes in affect; or
     • dynamic mood swings;

2. A pattern of abnormal conduct, erratic or aberrant behavior, or deteriorating work performance such as frequent absenteeism, excessive tardiness, or recurrent accidents,

3. The identification of an employee as the focus of a criminal investigation into unauthorized possession, use, or trafficking of a controlled substance or marijuana

4. A report by a reliable and credible source; or

5. Repeated or flagrant violations of work rules that

• pose a substantial risk of injury or property damage and
• appear to be related to the drug/alcohol use and
• do not appear attributable to other factors.

Employers should make sure that, first of all, they obtain the posting available on the BWC website and provide notice to their employees of their intent to perform post-accident drug testing.  In the event of a positive drug test, the employer should take the necessary steps to document the presence of circumstances which gave them reasonable cause to perform a drug test.  This will give employers the best chance of taking advantage of Ohio’s law regarding drug and alcohol testing in workers’ compensation claims.