DRUG TEST BURDEN COULD SHIFT TO EMPLOYEES INJURED ON JOB

COLUMBUS - If you are injured on the job and test positive for drugs
or alcohol, the state will assume you are responsible for the
accident and can deny you compensation under a bill awaiting passage.

And refusal to submit to a timely analysis of blood, breath or urine
would mean you are automatically assumed to have been using alcohol
or drugs.

The bill adopts the same standard for on-the-job intoxication as
applies to driving a car: Blood alcohol content cannot exceed .10 of
1 percent.

The provision, expected to pass the Senate yesterday, was temporarily
stalled by Democrats who cried constitutional foul. They called it
the "guilty-until-proven-innocent" bill and demanded an amendment
requiring employers to inform employees of the new ground rules.

Senate leaders, mindful of the bills potential constitutional
problems, huddled with lawyers late yesterday and said they hope to
bring the bill before the Senate for a vote today. It has already
passed the House.

Sen. Dan Brady, a Cleveland Democrat, led opposition to the bill and
offered the employee-notification amendment, which was defeated.

If the bill does pass, it would make it more difficult for some
injured workers to collect workers compensation benefits.

Under current law, a worker proven to be on drugs or alcohol at the
time of an on-the-job accident can lose his or her compensation. It
is up to the employer, however, to prove the drugs or alcohol caused
the accident. Under House Bill 122, employees would have to prove
drugs and alcohol were not a cause.

"The courts are going to look at this and say, We cannot believe you
would not provide some kind of notice requirement to the employee
..." said Sen. Leigh Herington, a Ravenna Democrat and lawyer.

Scott Nein, a Middletown Republican, opposed requiring in writing
that businesses inform workers of the changes to the law. He proposed
instead that lawmakers work informally with business associations to
ensure workers are told.

Nein said the bill would enhance workplace safety and protect
businesses - particularly smaller ones - from undue liability in
cases where workers are at fault. He said most big employers in the
state are able to limit their liability through contracts with unions.

Sen. Ben Espy, a Columbus Democrat, said if there is even a
possibility that the drug test results or test refusal could be used
as evidence against a worker in criminal court, the worker should
know.

"Any one of you who may have had a drink or two on the job may want
to know your rights," he quipped. "That is just constitutional."

ACLU-Ohio legal director Raymond Vazvari said the provision that
shifts the burden to the employee is "based on prejudices, biases and
prior conceptions that may not be relevant."

"Drugs can stay in your system for a very long time, and alcohol
consumption is a legal right in this country," Vazvari said. "They
are placing an unjustified burden on the employee to prove his own
innocence."

Civil libertarians have long been outspoken in opposing mandatory
drug testing, in part because the noticeable effects of some
substances are long past before they exit the bloodstream. THC, the
byproduct of marijuana, can stay in the blood for four to six weeks
after usage, for example.

Also, poppy seeds and certain over-the-counter medications can lead
to false-positive results. Brady argued in committee that few
guidelines were provided in the bill to ensure tests were conducted
properly.