Rebuttable Presumption—Round Two

In response to the Ohio Supreme Court’s recent decision declaring unconstitutional Revised Code §4123.54, which established the rebuttal presumption defense, House Bill 223 is working its way through the legislative process. This Bill re-establishes the “rebuttal presumption” that the proximate cause of an employee’s injury is due to intoxication or the influence of a controlled substance not prescribed by the physician when appropriate testing is positive for the same substance or the employee refuses to submit to the test when given proper notice.

Under the proposed law, a test can be administered to an employee after an injury where an employer had reasonable cause to suspect that an employee may be intoxicated or under the influence of an controller substance not prescribed by a physician, at the request of a police officer and at the request of a licensed physician not employed by the employer and not at the request of the employer.

“Reasonable cause” will be defined as evidence that an employee is or was using alcohol or a controlled substance drawn by specific, objective facts and reasonable inferences drawn from the facts such as: direct observation of the use, possession or distribution of the substance; physical symptoms of being under the influence, such as slurred speech, etc.; abnormal conduct or deteriorating work performance such as frequent absenteeism, excessive tardiness, recurring accidents; the identification of an employee as the focus of a criminal investigation into unauthorized possession, use or trafficking of a controlled substance; a report of use of alcohol or a controlled substance by a reliable and credible source; or repeated or flagrant violations of safety or work rules of an employer as determined by a supervisor to pose substantial risk of physical injury or property damage that appeared to be related to the use of alcohol or a controlled substance and not to other factors.

The balance of the proposed legislation is essentially the same as the prior statue.

Given the political make-up of the General Assembly and the Governor’s Office, it appears that this Bill will become law some time in the first half of 2004.

From a practical standpoint, Ohio employers will once again need to review their employee handbooks, policy manuals, and employment practices to be certain that they are in compliance with the law in order to invoke the rebuttal presumption. Also, additional training may be necessary for front line supervisors as far as the requirements for “reasonable cause” are concerned.

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