An Ohio appellate court recently granted an employee's application for temporary total disability benefits, despite the employee's positive post-injury drug test. The court based its decision on the language of the employer's drug-free workplace policy which varies from that of the Ohio Revised Code. This decision -- State of Ohio ex rel. Clevenger v. Ohio Staff Leasing, Inc., Slip Opinion No. 08AP-828, 2009-Ohio-3085 (issued June 25, 2009) ("Clevenger") -- raises issues Ohio employers should consider when drafting a drug and alcohol policy.

The Problematic Policy and Claimant's Injury

On October 8, 2007, claimant sustained a work-related injury while employed by Ohio Staff Leasing ("OSL"). Post-injury drug testing was positive for marijuana metabolites and OSL terminated claimant pursuant to its drug-free workplace policy ("DFWP"). Subsequently, claimant sought an award of temporary total disability benefits ("TTD") commencing on the date of the injury. Although the Industrial Commission denied claimant's request for TTD, the Court of Appeals Tenth Appellate District found for claimant. The court reasoned that OSL failed to meet its own burden based on the language of its DFWP which states: "Workers' Compensation benefits can only be withheld if upon a thorough investigation, it is found that [employer] proves consumption of alcohol or drugs was the direct or root cause of the accident or mishap."

Voluntarily Abandonment

In opposing the claim, OSL relied on State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995), which holds that voluntary abandonment of employment occurs if a claimant violates a written work rule or policy that: (1) clearly defined the prohibited conduct, (2) was previously identified by the employer as a dischargeable offense, and (3) was or should have been known to the employee. Voluntary abandonment usually precludes payment of temporary total disability benefits.

Claimant argued that his termination for violating the drug policy did not amount to voluntary abandonment. He cited to a line of Ohio cases: State ex rel. Pretty Products v. Indus. Comm. 77 Ohio Std.3d 5 (1996), State ex rel. Gross v. Indus. Comm., 2007-Ohio-4916 (2007) and State ex rel. Upton v. Indus. Comm., 2008-Ohio-4758 (2008). These cases generally support the proposition that an employee can voluntarily remove himself from the workforce only if he has the physical capacity for employment at the time of his termination. Clevenger argued he was lacking physical capacity to work due to his injury at the time he was terminated, and as a result, he could not voluntarily abandon his employment.  

Fact-Specific Decisionmaking

The Clevenger court talked at length about the history of "voluntary abandonment," but based its decision solely on the language of OSL's DFWP. The appellate court simply reasoned: "a strict reading of [OSL's policy] leads to but one conclusion. . .[claimant] remains eligible for TTD compensation because OSL has not proven that the presence of marijuana in his system was the direct or root cause of his industrial accident."

Rebuttable Presumption

Under the rebuttable presumption provision in Ohio Rev. Code Ann. § 4123.54, if an employee is injured on the job and tests positive for drugs or alcohol, the substance is presumed to be the proximate cause of the injury. To qualify, an employer needs to place employees on notice that refusal to submit to a statutorily described chemical test or positive results may affect the employee's eligibility for compensation benefits. In contrast, the OSL policy shifts the burden to the employer to prove the consumption of alcohol or drugs was the direct or root cause of the accident or mishap. This burden is so significant that OSL is essentially denying itself the benefit of the rebuttable presumption provision set out in § 4123.54.

Although Clevenger did not discuss "rebuttable presumption," the case demonstrates the significance of the language of an employer's policy. Employers should be cautioned against drafting a drug free workplace policy that shifts the burden onto itself to prove that drugs or alcohol were the cause of an employee's injury thereby giving up the benefits of the "rebuttable presumption" language of the Ohio Revised Code.