Did you know a workers’ compensation claim may be denied if the injured worker was intoxicated or under the influence of controlled substances at the time of the accident? Did you know that if you take certain steps now, you could increase the employer’s chances of prevailing if such a claim arises in the future?
Under Ohio law, in workers’ compensation claims where an injured worker was intoxicated or under the influence of a controlled substance at the time of a work place injury, the employer may be entitled to a rebuttable presumption that the intoxication or influence of the controlled substance was the proximate cause of the injury, and not the employment. Specifically, if an employer believes an employee was injured while under the influence of a controlled substance and/or while intoxicated, and that employer has taken the appropriate steps both prior to and after the date of injury, the employer is entitled to a presumption that the employment did not cause the injury. If the employer is successful, this would result in a denied workers’ compensation claim.
Before the Date of Injury
First, the employer musthave the statutory written notice posted in the workplace. This notice informs employees that refusal to submit to a drug test and/or the results of a drug test may affect the employee’s eligibility for compensation and benefits under the workers’ compensation system. Typically, this notice is posted with other federal and state employment notices in the break room or near a time clock. A PDF version of the notice can be found at the following website: https://www.bwc.ohio.gov/downloads/blankpdf/RebutPresumpNotice.pdf
Second, the employer should have a written policy regarding drug testing. The policy should reflect when employees can be tested, especially after a work place injury. Further, this policy should provide guidance to employees, so they know how and when to document when they believe a co-worker was under the influence of a controlled substance or intoxicated at the time of a workplace injury. Additionally, if the employer has collective bargaining units, it should ensure it does not bargain away the rebuttable presumption.
Third, the employer should pre-determine where it will have an injured worker tested after a work place injury.
On the Date of Injury
First, the employer must have the injured worker tested within the correct amount of time and using the correct lab.
- If an employer believes the injured worker is intoxicated, the employee must be tested within 8 hours of the injury. The test given to determine intoxication is similar to that given to determine impaired driving. If the test reveals the employee was intoxicated, similar to impaired driving, the employer may be entitled to the rebuttable presumption that the intoxication, and not the employment, caused the workplace injury.
- If an employer believes the injured worker was under the influence of marijuana or a controlled substance not prescribed by the employee’s physician, the test must be completed within 32 hours of the injury. The employer would be entitled to the rebuttable presumption if the test reveals the controlled substance or marijuana in the injured worker’s system exceeds the federal cutoffs for such substances.
- Finally, if an employer believes the injured worker has barbiturates, benzodiazepines, or methadone in their system at the time of the injury, the test must be completed within 32 hours of the injury. If the test shows the levels are above the levels established by federal guidelines, the employer may be entitled to the rebuttable presumption.
Second, the employer must document “reasonable cause” for the testing. It is critical to the employer’s success that the reasonable cause be documented soon after the injury. Specifically, the issue that prevents most employers from relying on the rebuttable presumption is that the employer did not document reasonable cause for the testing at the time of the injury, but rather, discovered the intoxication and/or influence through the routine drug test. However, if the employer does not have reasonable cause for the test, the employer is not entitled to the rebuttable presumption. Thus, a routine, post-injury drug test will not suffice.
The employer may show reasonable cause the following ways:
- Observable conduct, such as direct observation of use, possession, or distribution of alcohol, a controlled substance, or marijuana;
- Observation of physical symptoms of being under the influence of alcohol, a controlled substance, or marijuana;
- A pattern of abnormal conduct or deteriorating work performance that appears to be related to the use of alcohol, a controlled substance, or marijuana, anddoes not appear to be attributable to other factors;
- The identification of an employee as the focus of a criminal investigation into unauthorized possession, use, or trafficking of a controlled substance or marijuana;
- A report of use of alcohol, a controlled substance, or marijuana provided by a reliable and credible source;
- Repeated or flagrant violations of the safety or work rules that are determined to pose a substantial risk of physical injury or property damage and that appear to be related to the use of alcohol, a controlled substance, or marijuana andthat do not appear attributable to other factors.
Taking these steps before and on the date of injury can protect the employer, should an impaired worker be injured while on the job. The rebuttable presumption places the burden on the injured worker to prove the intoxication and/or influence of controlled substances did not cause the injury. However, if the employer has not posted the requisite notice, tested within the requisite time period, or documented reasonable cause for the test, the rebuttable presumption will not be available to the employer.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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