Fact or Fiction: Post-Accident Drug Testing in the Workplace

Ohio may be on the cusp of legalizing recreational marijuana use. Come November 7, a constitutional amendment on the ballot (Issue 2) seeking approval of such usage will be put to a vote.
Most of the attention in the upcoming election has, not surprisingly, focused on Issue 1, the abortion amendment. However, for employers, it is Issue 2 that is likely to be far more impactful. Having employees show up to work after using marijuana “recreationally” can only complicate the already difficult task of keeping drugs out of the workplace. Workplace accidents that may result from such carryover usage are where the implications of this bill will have the greatest impact.
Putting aside the pros and cons of such a measure, this is a good opportunity for revisiting what Ohio’s workers’ compensation law says and, more importantly, what it does not say, about an employee testing positive post-accident for marijuana (or any other drug, for that matter).
The law does not say, as many media outlets reporting on this Issue have erroneously stated, that an employee who sustains a work injury and tests positive post-accident for marijuana will have their claim denied. This is not the law in Ohio, and this cannot be stressed enough.
It is true that while a workers’ compensation claim may get denied as a result of a positive post-accident drug test, it is not because the law requires it. Rather, it is often related to practical factors, such as the employee was terminated or did not bother to show up for their hearing, etc.
Here is what the law does say: a positive post-accident test for marijuana (or any other illegal drug) creates a presumption that the employee was under the influence of that drug at the time of the accident and was therefore impaired. In other words, the law presumes that an intoxicated or otherwise ‘high’ employee has no right to receive workers’ compensation benefits for a workplace injury. The law does not end there. There is one critical caveat: an employer must show that the intoxicated employee exhibited behavior consistent with such intoxication. Examples of such behavior under the law include slurred speech, dilated pupils, odor of alcohol or drugs, and significant changes in mood or behavior.
In other words, it doesn’t matter that the employer had a post-accident drug testing policy and that, as a result of that policy, the post-accident test revealed the existence of marijuana. The law doesn’t care that the company policy mandates the post-accident test. What the law cares about is the employee’s pre-accident behavior. If the employee’s pre-accident behavior exhibited one or more of the criteria mentioned above, then the positive test can be the basis for denying the claim. If the employer cannot produce such evidence, the presumption is not triggered and the claim will not automatically be denied.
In short, employers take notice: a positive post-accident drug test will not, in and of itself, be the cause for denying a workers’ compensation claim. A positive post-accident test that was prompted by an employee’s erratic or other seemingly intoxicated behavior will trigger the presumption that it was the employee’s impairment that caused the accident. Unless the employee has some reasonable explanation for the pre-accident behavior, then the workers’ compensation claim will be denied.

Employers interested in additional details, including other options for defending claims, please contact one of our Labor & Employment attorneys Seth P. Briskin, Lester W. Armstrong, David M. Smith, Steven P, Dlott or Joseph C. Pokorny.