SHIFTING THE BURDEN OF PROOF

To collect WORKERS' COMPENSATION starting April 10, employees injured while
under the influence will have to prove that drugs or alcohol did not cause
the accident.

On-the-job substance abuse, by the numbers National surveys indicate that
rates of drug and alcohol use in the workplace have not increased in the
past several years, the U.S. Department of Labor says. Still, nearly 14
million Americans use drugs and nearly three-quarters are employed. The
statistics below suggest the scope of the problem.

The cost to U.S. businesses in 1990* attributed to employee alcohol and
drug use in terms of lost productivity because of premature death and
illness: $81.6 billion

The amount that U.S. businesses annually spend to combat workplace
substance abuse: $1.2 billion

The number of lost workdays nationally caused by alcoholism: 500 million

The percent of all current drug users employed in 1997*: 73

The percent of employees in an average workplace who abuse alcohol or
drugs: 15 to 17

The number of times more likely that drug-using employees are to file a
workers' compensation claim compared to other workers: 5

Sources: U.S. Department of Labor, Ohio Bureau of Workers' Compensation,
Hazelden Foundation

*The most recent year for which complete data are available.

Beginning next month, employers will have a new weapon in the war against
workplace drug and alcohol use.

Businesses, which long have complained that the state's workers'
compensation is stacked against them, will be better able to challenge
claims filed by workers injured while under the influence.

The change in state law was approved by lawmakers late last year and takes
effect April 10. It will put the burden on employees to prove that drugs or
alcohol in their system did not cause their accident.

And refusing to take the test is tantamount to testing positive, as far as
employers and the state are concerned.

Employers say the change is a common-sense response to a dangerous situation.

Labor unions plan to challenge the new law in court, arguing that it's an
illegal change in the collective-bargaining law.

Experts, meanwhile, disagree on the prevalence of drugs in the workplace
and whether corporate drug policies are even worth the bother.

Regardless, U.S. businesses spend $1.2 billion annually to combat the
problem, real or perceived.

The Ohio Bureau of Workers' Compensation estimates that 15 percent to 17
percent of the employees in an average workplace have a substance-abuse
problem -- at a cost to the employer of $7,000 a year per worker.
Nationally, anti-drug groups have pegged the price between $75 billion and
$100 billion a year.

"I don't think any of us know the prevalence of drug use in the workplace,"
said Bob Weisman, a labor expert and partner with law firm Schottenstein
Zox & Dunn in Columbus. "If anything, I suspect it is underestimated.

"And right now, public sentiment supports a drug-free workplace," he added.

Backers of the new standard often cite court cases such as the Ohio Supreme
Court ruling that the widow of a scaffolding company worker who died in
1980 after falling off the Perry Memorial at Put-In-Bay was entitled to
death benefits despite evidence that her husband drank more than a six-pack
of beer before and during lunch.

The court ruled that the company demonstrated only that the employee had
alcohol in his system -- not that the worker was impaired by the alcohol.
That's an almost impossible burden of proof to meet, backers of the new law
say.

Critics counter that there is just something, well, un-American about
shifting the burden of proof to the accused.

"If you don't do that, everybody would refuse to take the test," Weisman
said. Besides, employers have the power to write policies warning workers
that refusal to submit to drug tests could be considered insubordination,
which could result in firing.

Based on the federal government's testing program, the ACLU in its 1999
report "Drug Testing: A Bad Investment," estimated that it costs $77,000 to
find a single drug user.

Dave Caldwell, president of the Columbus-Franklin County AFL-CIO, said the
link between drug-testing and the workers' compensation system also takes a
toll on labor-management relations.

The labor federation likely will challenge the law on the grounds that it
conflicts with collective-bargaining laws, Caldwell said.

Because the new law requires post-accident drug testing of anyone involved
in an accident -- including, for example, a bystander run over by a drunken
forklift operator -- it runs counter to a provision in federal law
requiring negotiations for drug and alcohol testing unless there is a
reasonable suspicion that the employee is under the influence, he said.

Scotts, which is mostly nonunion, believes in testing everyone involved,
Smith said.

"They might have gotten hurt not because they caused the accident, but
because they might not have reacted quickly enough if they were under the
influence," she said.

Ultimately, it still will be up to the employer to review accidents and
make a case for denying a claim, Weisman said.

"I hope that companies don't think that just because there is a positive
test result, the claim will be denied," he said. The change in the law just
makes it easier.

Caldwell, though, doesn't expect a stampede of companies rushing to take
advantage of the switch. He said he doesn't think there are that many
workers collecting workers' comp claims from drug-or alcohol-related injuries.

"I think it's more paranoia on the part of management, that if there's an
injury, the worker must have done something wrong."