To maximize the likelihood of a successful challenge to a workers’ compensation claim, an employer should ask the following questions:
Does our company have in place a written drug-free policy that addresses consequences of substance use in violation of the employer’s policy, including, but not limited to, the employer’s intent to seek disallowance of a workers’ compensation claim documented by a positive drug or alcohol test or a refusal to test?
Do we have the policy reviewed by legal counsel that has a background in employment law and drug-free case law?
Does our company use the Ohio Bureau of Workers’ Compensation’s (BWC’s) drug-free program design as a model or participate in a BWC drug-free program to have testing in place that will allow consideration of rebuttable presumption?
Do we clearly explain in the policy that rebuttable presumption means a positive test for alcohol or any of nine specified controlled substances (drugs) or that refusal to be tested can create a presumption that the presence of alcohol/drugs in an employee’s system is the proximate cause of a work-related injury, which may make the injured workers’ claim non-compensable?
Does our company conspicuously post the required written notice, which BWC provides, to inform employees that the Bureau may disallow workers’ compensation benefits if they use drugs or alcohol and cause an injury to themselves? Then, do we educate all employees about this beyond simply posting the notice in the interest of compliance and prevention?
If we have collective bargaining agreements, does our company ensure we bargain this with all of our unions?
Does our company train all supervisors and managers to do a thorough post-accident investigation, especially when an injury occurs? They should be prepared to obtain documentation of a reasonable cause for testing to have occurred or to have been requested.
Does our company ensure we obtain eye-witness co-worker affidavits to confirm a reasonable cause for testing and provide clear documentation of reasonable cause for testing?
Does our company ensure that all aspects of substance testing follow federal testing guidelines to obtain accurate test results, buffer the employer from legal liability and have in place maximum protections for employee rights?
Does our company ensure that specimen collection for an alcohol test occurs as close to the time of the injury as possible, but no later than eight hours after this event, and that specimen collection for a drug test occurs no later than 32 hours after the accident/injury?
Does our company arrange with a collection site or sites to do alcohol and drug testing in compliance with the federal testing model, and identify the drugs we want tested? Do we ensure the collection site uses the services of a certified medical review officer and a laboratory certified by the Substance Abuse and Mental Health Services Administration for urine drug analysis?