Say What? The Employee Who Failed His Post-Accident Drug Test Gets Workers’ Comp.?

Employers might assume that an injured worker’s positive post-accident drug or alcohol test will automatically defeat a related workers’ compensation claim. However, in Ohio at least, the reality is a bit more complicated. Under Ohio law, a positive, post-accident drug test raises only a “rebuttable presumption” that the injured worker’s use of drugs or alcohol proximately caused the industrial injury. Since this legal presumption is “rebuttable,” the burden then shifts back to the employee to prove that the impairment did not cause the accident. This burden-shifting “rebuttable presumption” can be a potent defense to some claims. However, the presumption is triggered only if the following elements are first satisfied:

1. The employer must have previously posted written notice that a positive test may disqualify the employee from benefits. To satisfy this requirement, employers often include this notice in their substance abuse section of the employment handbook.
   
   
2. The detected levels of alcohol or other controlled substances must have been above the applicable threshold. These levels are mandated by federal law. Alternatively, if the injured worker refuses to submit to a test, the presumption will be triggered.
   
   
3. A post accident test will qualify for the presumption only where: (1) the employer had reasonable cause to suspect that the employee was under the influence of drugs or alcohol at the time of the accident; (2) the testing was done at the request of a police officer; or 3) the testing was done at the request of a licensed physician, who is not otherwise employed by the employer.

Ohio law defines “reasonable cause” as evidence that an employee is or was using alcohol, a controlled substance, or marijuana, drawn from specific, objective facts and reasonable inferences drawn from those facts in light of experience and training. Examples of reasonable cause might include:

• Direct observation of use
• Pattern of abnormal conduct
• Criminal investigation of employee for drug use
• Report of use by credible source
• Repeated or flagrant violations of the safety or work rules of employer.

These requirements seem to create a conflict between the rebuttable presumption rule and an employer’s right to implement a zero-tolerance drug policy at their workplace. In fact, Ohio law specifically addresses this tension. The statute provides that “nothing in this section shall be construed to affect the rights of an employer to test employees for alcohol or controlled substance abuse.” See O.R.C. §4123.54(D).