Nothing can be more frustrating to Ohio employers than an employee filing a workers’ compensation claim for an accident that was clearly caused by his own intoxication. In Ohio, the intoxication of an injured worker can typically be asserted as a workers’ compensation defense in two ways.
Ohio R.C. 4123.54(A)(2) provides that workers’ compensation injuries are not compensable when, “Caused by the employee being intoxicated, under the influence of a controlled substance not prescribed by a physician, or under the influence of marihuana if being intoxicated, under the influence of a controlled substance not prescribed by a physician, or under the influence of marihuana was the proximate cause of the injury”.
Additionally, R.C. 4123.54(B) provides where, an employer has posted written notice to employees that the results of, or the employee’s refusal to submit to, any chemical test described under this division may affect the employee’s eligibility for compensation and benefits pursuant to this chapter and Chapter 4121. of the Revised Code, there is a rebuttable presumption that an employee is intoxicated, under the influence of a controlled substance not prescribed by the employee’s physician, or under the influence of marihuana and that being intoxicated, under the influence of a controlled substance not prescribed by employee’s physician, or under the influence of marihuana is the proximate cause of the injury where a qualifying drug test is administered within a requisite number of hours subsequent to the injury.
Recently, we defended a claim in which the claimant argued that his submission of a non-conforming urine specimen (incapable of being tested as the temperature of the specimen was not within the required range for a liquid coming from a human body) constituted compliance with R.C. 4123.54(B). Amazingly, the district and staff hearing officers agreed with this argument, holding that the claimant did provide a urine sample and the statute does not specifically state it must be a compliant sample!
In this case it was necessary to file a motion for reconsideration and point out that it the policy of the Industrial Commission cannot be that a claimant can thwart the legislative intent regarding drug and alcohol in a work place by submitting an altered or non-complying urine specimen incapable of being tested. At the hearing we argued that the policy of the Industrial Commission should be consistent with the policies of the American Association of Medical Review Officers and the Medical Review Officer’s Certification Counsel, both of which deal which with drug and alcohol testing. Ultimately the Industrial Commission agreed with our position and held that the claimant must provide a compliant specimen that is capable of being tested.
Recently there has been a great deal of concern regarding Ohio’s legalization of medical marijuana. R.C. 3796.02. Fortunately, nothing in Ohio’s medical marijuana statute interferes with an employer’s right to discharge or take other employment actions based on an employee’s use of medical marijuana. Additionally, nothing in the statutes authorizes legal action against an employer for taking employment actions based on an employee’s use of medical marijuana. In summary, marijuana still remains illegal under Federal statutes, and nothing in Ohio’s legislative scheme should interfere with an employer’s right to set its own drug-free workplace policies. However, because this issue has come to the forefront, we do suggest that our clients review their current workplace policies and manuals to specifically address their positions concerning medicinal marijuana.
Prior to entering private practice, Dennis served in the Ohio Attorney General’s Office’s Workers’ Compensation Section for 10 years. Dennis’ practice since then has included all areas of workers’ compensation defense and employment litigation and counseling. Read more
