Burden of proof

On Dec. 18, 2002, in an arguably advisory opinion, the Ohio Supreme Court struck down an amendment to an Ohio statute that said an employee who is injured on the job and tests above certain limits for alcohol or drugs is not eligible for workers’ compensation benefits.

Once again, the burden of proof is on employers to show that drug or alcohol use was the cause of the injury. However, the court has made that burden even more difficult by holding that post-accident testing not based on reasonable suspicion constitutes an unreasonable search and seizure. And the results cannot be used by the Bureau of Workers’ Compensation or the Industrial Commission to deny a claim.

Thus, employers’ hands are tied. Unless there is reasonable suspicion, the routine post-accident drug test may not be admissible evidence.

The following examples illustrate how tricky the subject of work-related alcohol and drug use can be.

* A saleswoman who is “known to drink” during the day is out on company business and is seriously injured when her car hits a patch of ice. A routine blood test at the hospital reveals that her blood alcohol is over the legal limit.

* A roofer at a small construction company falls off a roof while on the job. He sustains severe injuries and is told he will never work again. Upon taking a routine post-accident drug test, per your company policy, you discover a high amount of marijuana in his system.

Which of these workers will qualify for workers’ compensation benefits? Both? Possibly. We’d like to think that an employer should not have to pay for injuries due to alcohol and drug use, but that is exactly what may happen, since the court’s decision is not based on a tangible case.

This makes it difficult to predict how the law will be applied to a real-life situation. Regardless, this decision is a wake-up call for employers who do not have a clear drug and alcohol testing policy.

Ask yourself these questions:

* Do you have a drug and alcohol testing policy?

* Does it include a post-accident drug and alcohol testing provision?

* If so, how is it communicated to employees?

* Is it enforced uniformly?

* Are consequences tied to progressive disciplinary measures?

Simply having a policy is not enough. It needs to be communicated and enforced. Even then, you may not be able to successfully challenge the allowance of a workers’ compensation claim that involves a positive drug test.

But if you diligently follow a well-thought-out drug and alcohol policy, that same drug test may help prove “voluntary abandonment” of employment, which could have a similar end result as a denied workers’ compensation claim.

Even minor on-the-job injuries are hard on small business owners. The loss of productivity alone can be a major financial setback.

But if an employee is killed or permanently injured in such an accident, it can also be a life-or-death moment for the entire company. Make sure your drug and alcohol testing policy provides the best, safest environment for your workers, and for the survival of your business. Kendra L. Carpenter is an attorney in the Columbus office of Vorys, Sater, Seymour and Pease LLP, where she practices in the litigation group. She can be reached at (614) 464.6467 or by visiting www.vssp.com.