OHIO COURT BACKS LABOR IN WORKERS' COMP DRUG TESTING

COLUMBUS - The 4-3 majority on the Ohio Supreme Court led by Justice
Andy Douglas delivered a major victory yesterday to labor unions,
infuriating business groups.

The majority struck down a 2001 law that says injured people seeking
workers' compensation benefits must prove that alcohol or drugs found
in their system didn't cause their injury. Previously, employers had
to prove that alcohol or drugs caused an injury when trying to deny
benefits to employees.

Writing for the majority, Justice Paul Pfeifer said the law - which
also said injured workers who refuse to take drug or alcohol tests are
presumed to have tested positive in the eyes of the state and their
employer - violates protections against "unreasonable searches" in the
federal and Ohio constitutions.

"The right at stake, to be free from unreasonable searches, is so
fundamental as to be contained in our Bill of Rights," Justice Pfeifer
wrote.

He was joined in the majority by Republican Justice Douglas and
Democrats Alice Robie Resnick and Francis Sweeney.

The three dissenters were Chief Justice Thomas Moyer, Evelyn Stratton,
and Deborah Cook - all Republicans.

"Why the extraordinary concern for an employee whose conduct may
suggest a drug test is warranted at the expense of other employees
whose conduct is appropriate?" Chief Justice Moyer wrote, adding that
unions who fought the law shouldn't have been allowed to take the case
directly to the high court.

Business groups said they will ask the legislature next year to pass a
law to overturn yesterday's decision, hoping the new court will uphold
it.

On Nov. 5, Justice Stratton was re-elected and Republican Lt. Gov.
Maureen O'Connor was elected to replace Justice Douglas, who couldn't
run for re-election because he has reached the mandatory retirement
age. Supported heavily by business interests, Justice Stratton and Ms.
O'Connor defeated Democratic judges backed by labor and trial lawyers.

The four-justice majority in yesterday's decision was the same that
has declared Ohio's school-funding system unconstitutional, struck
down a 1996 law designed to limit civil lawsuit awards, and crafted a
1999 decision that expanded insurance coverage under uninsured and
underinsured motorist policies.

"It is mind-boggling that this court would find it tolerable for there
to be drugs and alcohol in the workplace," said Roger Geiger, state
executive director of the National Federation of Independent Business.
"I think it is a serious blow to individuals who come to work every
day - which is the vast majority of Ohio employees - expecting there
to be a drug-free work environment."

State law for several years has barred workers' compensation benefits
to workers whose injury was caused by using alcohol or drugs.

In 2000, the Republican-controlled legislature amended state law to
shift the burden of proof from the employer to the injured employee.
The law also was designed to make it easier for the state to deny
benefits to injured workers who refuse to take company-requested drug
or alcohol tests.

In April, 2001, a week before the new law took effect, the Ohio
AFL-CIO and the United Auto Workers - which have about 950,000 members
in Ohio - challenged the new law as unconstitutional, filing a lawsuit
directly with the Supreme Court.

Siding with the unions, Justice Pfeifer wrote that the new law does
not fit within the guidelines of U.S. Supreme Court rulings on what
justifies "suspicionless searches."

"It is not directed at a segment of the population with drug use known
to be greater than that of the general population - its target group
is the general population. It does not target a segment of industry
where safety issues are more profound than in other industries. The
searches allowed ... involve everyone who works in Ohio," Justice
Pfeifer wrote.

Although workers could show in a state hearing that drugs or alcohol
found in their systems didn't cause their injury and therefore they
should receive workers' compensation benefits, the presumption of
guilt "changes the way an employee presents his or her case," Justice
Pfeifer wrote.

"Whether or not the presumption in the end affects their claim, the
fact remains that they are subject to a government-imposed sanction
for failure to submit to the chemical testing. Ordinary people working
ordinary jobs do not have the expectation that they are subject to
searches without reason," he wrote.

The state Bureau of Workers' Compensation said it didn't have
statistics on the number of workers who have been denied benefits
since April, 2001, for failing to prove that alcohol or drugs found in
their systems didn't cause their injury, or refusing to take drug or
alcohol tests.

"Only a handful of claims really were involved, most likely because
employers were waiting to see what would occur with the lawsuit," said
bureau spokesman Jim Samuel.

Yesterday's ruling will make it harder for the state to deny workers'
compensation benefits to workers whose injuries may have been caused
by their drug or alcohol use, Mr. Samuel said.

"I find it very strange there were no injured parties that took a case
to court," said the law's sponsor, state Rep. Gary Cates (R., West
Chester). "The four-person majority has decided once again to write
public policy at will."

Marc Jaffy, an attorney representing the Ohio AFL-CIO, praised the
decision for upholding "important constitutional rights for workers."

He said the Dec. 31 retirement of Justice Douglas and his replacement
by Ms. O'Connor doesn't necessarily mean the end of pro-worker Supreme
Court rulings.

"The rights of workers are important - no matter who is on the court,"
Mr. Jaffy said.

But Mr. Geiger referred to the 4-3 decision as "another opportunity
for the current majority to stick it to the employer community.

"Hopefully in the future, we have a court that understands that drugs
and alcohol are a problem in the workplace and that there should be
zero tolerance and that people who show up drunk or high have a
greater burden to prove that their accident didn't involve drugs or
alcohol," he said.