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Things Clients Want to Know (JULY 2011)

Wednesday, March 28, 2012

Question: What benefits do employers see in post-accident drug testing?

The Erosion of the Benefits of an Employer’s right to Drug testing:


I. Goodbye Post-Accident Drug Test and Voluntary Abandonment

In 2000, the Supreme Court ruled in State ex rel. Cobb v. Indus. Comm. that a claimant could voluntarily abandon his employment when he violated a company drug policy. A finding of voluntary abandonment operates as a bar to temporary total compensation. The Court specifically indicated that a termination of an employee is deemed to be voluntary if it was generated by an employee’s violation of a written work rule or policy that (1) clearly defined the prohibited conduct; (2) had been previously identified by the employer as a dischargeable offence and (3) was known or should have been known to the employee.

Fast forward to 2008, and now employers that have a drug free workplace program and do post-injury testing and have satisfied all three tests above cannot always rely upon a positive drug test to argue voluntary abandonment and preclude an injured worker from receiving temporary total compensation. The Court in State ex. rel. Reitter Stucco, imposed a timing element on the voluntary abandonment indicating that if a claimant is disabled when they are found to have violated the rule, then they cannot have voluntarily abandoned their employment. So it follows, that an employer may have an injured worker that violates the written drug policy but if they are disabled from the injury at the time of the termination, you cannot bar temporary total compensation. Here are how the scenarios play out:


TTD is payable:

A. Claimant injured on 1/1/11, seeks treatment at the ER, and the ER takes him off work. Tests positive for drugs and pursuant to the employee handbook is terminated. While the termination still stands, because he was disabled at the time of the termination, he is still entitled to temporary total compensation.


TTD is not payable:

B. Claimant injured on 1/1/11, seeks treatment at the ER and he is released to light duty. While working light duty, the positive drug test is revealed and he is terminated as a result of violating company policy. Claimant may be terminated and would not be entitled to temporary total compensation because he was NOT disabled at the time of termination.


II. What rebuttable presumption?

ORC 4123.54 creates a rebuttable presumption that an injury was caused by the use of illicit drugs. However, in practicality the parameters that are placed in this statute are so onerous that the rebuttable presumption is rarely found. In fact, those that participate in a drug free workplace post-accident program are most often not granted the presumption because testing is required not initiated by what the statute sets forth as “reasonable cause.” Employers must post written notice of the statute and must demonstrate “reasonable cause” to test by one of the following: 1) observable phenomenon consistent with drug/alcohol use 2) pattern of abnormal conduct 3) identification of employee as the focus of a criminal investigation; 4) report of alcohol/drug use from a credible source (police officer) or 5) repeated or flagrant violations of the safety or work rules of the employer.

Ways to satisfy one of the proof requirements would be to add questions to the supervisor’s section of the accident/investigation report which would reflect the claimant’s behavior, i.e. slurring words, stumbling, smell of alcohol, rapidity of speech, eye redness. This however, cuts both ways in that if the supervisor specifically indicates that the claimant’s behavior was nothing out of the ordinary then you need to look to the other categories to support reasonable cause to perform a drug test.

Employers can use a proximate cause argument to argue for the denial of a positive drug test claim but, this requires the employer to medical evidence from a physician who indicates to a reasonable degree of medical certainty that the injury was caused by the use of the substances outlined in the statute. Interestingly enough, this is exactly what employers did to defend against these claims prior to the institution of the current version of ORC 4123.54.

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