Legislative Victories

Rubuttable Presumption

A critically important bill for Ohio employers has finally made its way through the General Assembly. Am.Sub. HB 122 (Cates, R-West Chester) forces employees seeking workers‚ compensation benefits to bear the burden of proving their impaired condition did not cause the workplace accident if they test positive for drugs or alcohol. The Ohio Chamber successfully led efforts to pass the bill, citing its ability to substantially improve workplace safety.

The bill, fought by labor unions and personal injury lawyers, sends a tough message to employees that drugs and alcohol will not be tolerated in the workplace. Under current Ohio law, employees are not entitled to receive workers‚ compensation benefits if their injury is (1) purposely self-inflicted, or (2) the proximate cause of the injury was the employee‚s intoxication or being under the influence of a controlled substance not prescribed by a physician. Employers, however, have had to prove that the employee's impaired condition caused the accident.

HB 122, in essence, shifts that burden of proof to the employee. Under the bill, when an employee involved in a workplace accident is found to be under the influence of alcohol or a controlled substance not prescribed by a physician, it will be presumed that the accident occurred because of the drugs or alcohol. The employee may rebut the presumption by proving some other factor was at fault. The "rebuttable presumption" applies when:

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 An employee, through a chemical test, is determined to have an alcohol concentration level equal to or in excess of the DUI statute (.1%), or
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 An employee, through a chemical test, is determined to have certain defined levels of a controlled substance such as amphetamines, cannabinoids
(marijuana), cocaine, opiates or phencyclidine (PCP) in his system, or
•
 An employee, through a chemical test, is determined to have certain defined levels of barbiturates, benzodiazephines, methadone, or
propoxyphene, in his system and they have not been prescribed by a physician, or
•
 An employee refuses to submit to a requested chemical test.