Challenge to Drug/Alcohol Testing Requirement Filed
On April 3, 2001, the Ohio AFL-CIO and the United Auto Aerospace & Agricultural Implement Workers of America, Region 2 and Region 2B, filed a case in the Ohio Supreme Court to challenge Amended Substitute House Bill 122. The case is Supreme Court case number 01-642.
Am. Sub. H.B. 122, effective on April 10, 2001, amends R.C. 4123.54 to permit employers to require workers injured as a result of their employment to undergo drug/alcohol testing solely because an accident occurred. Any worker who suffers an injury in their employment may be required to undergo such testing. The bill does not require a reason to suspect that the injured worker was under the influence of drugs or alcohol.
The bill denies workers’ compensation benefits if an injury occurred due to the use of a controlled substance. If an injured worker tests positive, or refuses to take a test for drugs or alcohol, the bill presumes that the injury occurred due to the use of a controlled substance.
The lawsuit challenging the amendments to R.C. 4123.54 alleges that the amendments are unconstitutional because:
- Art. II, Sec. 35 of the Ohio Constitution created the workers’ compensation system and provides a no-fault system of compensation to individuals who are injured as a result of their employment. The testing requirements of R.C. 4123.54, as amended, bear no relationship to whether or not an injured worker was injured as a result of their employment and further improperly insert notions of “fault” into the workers’ compensation system.
- Violation of U.S. and Ohio Constitutional protections of the right to privacy, and protection of unreasonable searches and seizures because the testing requirement applies to all injured workers — there is no requirement of probable cause, or a reasonable basis for believing that the injured worker was under the influence of a controlled substance.
- Violation of U.S. and Ohio Constitutional right to Due Process because there is no relationship between a positive test result and whether or not an injured worker was under the influence of a controlled substance at the time of the injury, as well as due to the possibility of false positives and false negatives.
- Violation of U.S. and Ohio Constitutional right to Equal Protection because the application of drug/alcohol testing is left to the discretion of the employers, without any standards for imposing such tests, meaning that some employers will test injured workers while others will not. This will result in similarly situated injured workers being treated differently.
Update: (May, 2001) In response to the complaint, the state filed a “Motion to Dismiss.”
The Supreme Court can either:
- grant the relief requested (declare Am. Sub. H.B. 122 unconstitutuional);
- grant the motion to dismiss; or
- order briefs to be filed so it can further consider the matter.
Update: (July, 2001) By a 4-3 vote the Ohio Supreme Court denied the Motion to Dismiss and scheduled the case for briefing and oral argument.
Update: (September 2001) Briefs in support of the Ohio AFL-CIO’s challenge to Am. Sub. H.B. 122 were filed with the Supreme Court on or before September 6, 2001. Supporters of the law have until October 9, 2001 to file briefs.
Update: (October 2001) Briefs opposing the Ohio AFL-CIO’s challenge to Am. Sub. H.B. 122 were filed with the Supreme Court on or before October 9, 2001. Reply briefs (filed by the supports of the challenge to Am. Sub. H.B. 122) were filed with the Supreme Court on October 15, 2001. The Supreme Court will now schedule a date to hear oral arguments.
Update: (February 2002) The Ohio Supreme Court heard oral arguments in State, ex rel. Ohio AFL-CIO v. Ohio Bur. of Workers’ Comp., on January 30, 2002. A brief summary of the argument is below:
Ohio AFL-CIO’s argument:
- The statute is unconstitutional because it violates both workers’ constitutional right to privacy by providing for suspicionless searches (the drug/alcohol tests).
- The law puts the force of the state behind invading the privacy of injured workers. Privacy is violated in three ways:
- by the worker having to disclose medical conditions before the test is taken;
- by the intrusion of actually taking blood, breath or urine samples; and
- by information obtained by analysis of the specimens, which can provide information about other conditions a worker might have such as depression, hypertension, epilepsy or pregnancy.
- The law also violates Article II, Section 35 of the Ohio Constitution because it is not for the purpose of providing workers’ compensation and also encourages injured workers not to file for workers’ compensation both through the language of the warning provided when a drug/alcohol test is required (which informs the worker that failure to comply may affect their right to workers’ compensation benefits) and because workers may decide not to file for workers’ compensation to protect their privacy.
Bureau of Workers’ Compensation argument:
- The Ohio AFL does not have standing to challenge the law, as there is no injured party.
- The law doesn’t say that employees must be tested, and many times the employer doesn’t have anything to do with the test, rather, the test is often ordered by doctors.
- Under the employment at will doctrine, an employer has a right to ask for the drug test, so there is no change in the law.
- Drug testing in the workplace is widespread.
- The statute is just an evidentiary provision, and the employee can always rebut the presumption set forth in the statute. The burden has always been on the employee to prove the case, and the burden hasn’t changed. The burden is for the employee to prove that the accident was not caused by the intoxication.
Update: (December 2002) The Ohio Supreme Court ruled that suspicionless random drug testing of injured workers violates the workers’ right to privacy under the United States and Ohio Constitutions and granted the requested writ of mandamus.