Q: I own a small business and want to screen my employees for drugs or alcohol after a work-place injury. Is this legal?
A: Yes. A change in the law, effective October 13, 2004, means that, for work-place injuries that occur on or after October 13, you can screen employees following an accident. However, you must have a reasonable suspicion that drugs or alcohol played a part in the injury before you test your employees.
Q: Under what circumstances may I screen an employee after an accident?
A: An employer must have posted a written notice to employees that the results of any chemical test or an employee’s refusal to submit to any chemical test may affect the employee’s ability to receive workers’ compensation benefits. Then, if an employee refuses to submit to a chemical test, a “rebuttable presumption” is created that the employee is or was intoxicated at the time of the industrial injury. (A rebuttable presumption is a legal conclusion that holds good until contrary evidence is presented.)
Also, to warrant a screen, an employer must have evidence—from specific, objective facts and reasonable conclusions drawn from these facts in light of training and experience—that an employee is or was using alcohol or a controlled substance. For example, an employer may directly observe the use, possession or distribution of alcohol or a controlled substance or may observe an employee showing physical signs of being under the influence of alcohol or a controlled substance (such as slurred speech, dilated pupils, odor of alcohol). This may be a good reason to suspect an employee may be intoxicated or under the influence of a controlled substance.
Q: What effect will creating a “rebuttable presumption” have on any workers’ compensation claim that is filed?
A: By creating a rebuttable presumption, the case can be made that an employee’s improper use of alcohol or an unprescribed controlled substance essentially caused the injury. This affects the employee’s eligibility to qualify for workers’ compensation benefits. The chemical test must be a qualifying test that shows the level of alcohol or illegal drug is above the amount the law allows—or the employer must be able to show that the employee refused to take the test even after receiving notice that a refusal might affect his or her workers’ compensation benefits.
Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Joan M. Verchot, of the Cincinnati firm, Dinsmore & Shohl, LLP.