Governor Signs New Workers’ Compensation Drug/Alcohol Testing Law
On July 14, 2004, the Governor signed Sub. H.B. 223, providing for chemical testing of injured workers. The law goes into effect October 13, 2004.
The Supreme Court declared a previous law which had provided for unlimited testing of injured workers unconstitutional in State ex rel. Ohio AFL-CIO v. Ohio Bur. of Workers’ Comp. (2002), 97 Ohio St.3d 504.
The new law indicates, in subsection (B)(1), that the rebuttable presumption exists if after a qualifying chemical test, certain levels are met. [The new law contains the same levels for a presumption that an injury occurred as a result of an employee being intoxicated or under the influence of a controlled substance as the previous law.]
Subsection (B)(2) indicates that the rebuttable presumption exists if the employee refuses to submit to a requested test – after having been given notice that the refusal to comply with a test under subsection (B)(1) may affect eligibility.
The new section (C) (1) describes a “qualifying test.” It indicates that a qualifying test is one administered
(a) after the employer had “reasonable cause” to suspect intoxication;
(b) at the request of a police officer pursuant to R.C. § 4511.191 (dealing with driving under the influence); or
(c) at the request of a licensed physician.
The statute indicates for subsections (C)(1)(b) and (C)(1)(c) that
the requests must be made by those individuals, and not the employer.
Subsection (C)(2) defines reasonable cause.
Subsection (E) identifies the types of labs which shall be used to process the test.