REPRESENTATIVES Gibbs, Cates, Schmidt, C. Evans, Calvert, Hagan, Aslanides, D. Evans, Buehrer, Setzer, Webster, McGregor, Raussen, Young, Faber, Peterson, Carmichael, Wolpert, Schlichter

To amend section 4123.54 of the Revised Code to

1

specify conditions under which chemical testing of

2

an employee may establish a rebuttable presumption

3

that the employee's injury was proximately caused

4

by use of alcohol or an unprescribed controlled

5

substance.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 4123.54 of the Revised Code be	7
amended to read as follows:	8

Sec. 4123.54.  (A) Every employee, who is injured or who	9
contracts an occupational disease, and the dependents of each	10
employee who is killed, or dies as the result of an occupational	11
disease contracted in the course of employment, wherever such	12
injury has occurred or occupational disease has been contracted,	13
provided the same were not:	14

(1) Purposely self-inflicted; or

15

(2) Caused by the employee being intoxicated or under the	16
influence of a controlled substance not prescribed by a physician	17
where the intoxication or being under the influence of the	18
controlled substance not prescribed by a physician was the	19
proximate cause of the injury, is entitled to receive, either	20
directly from the employee's self-insuring employer as provided in	21
section 4123.35 of the Revised Code, or from the state insurance	22
fund, the compensation for loss sustained on account of the	23
injury, occupational disease, or death, and the medical, nurse,	24
and hospital services and medicines, and the amount of funeral	25
expenses in case of death, as are provided by this chapter.	26

(B) For the purpose of this section, provided that an	27
employee is given or has been given notice that the results of, or	28
the employee's refusal to submit to, any chemical test described	29
under this division may affect the employee's eligibility for	30
compensation and benefits pursuant to this chapter and Chapter	31
4121. of the Revised Code, there is a rebuttable presumption that	32
an employee is intoxicated or under the influence of a controlled	33
substance not prescribed by athe employee's physician and that	34
being intoxicated or under the influence of a controlled substance	35
not prescribed by athe employee's physician is the proximate	36
cause of an injury whenunder either of the following conditions:	37

(1) When any one or more of the following is true:

38

(1)(a) The employee, through a qualifying chemical test	39
administered within eight hours of an injury, is determined to	40
have an alcohol concentration level equal to or in excess of the	41
levels established in divisions (A)(2) to (7) of section 4511.19	42
of the Revised Code;	43

(2)(b) The employee, through a qualifying chemical test	44
administered within thirty-two hours of an injury, is determined	45
to have one of the following controlled substances not prescribed	46
by the employee's physician in the employee's system that tests	47
above the following levels in an enzyme multiplied immunoassay	48
technique screening test and above the levels established in	49
division (B)(3) of this section in a gas chromatography mass	50
spectrometry test:	51

(a)(i) For amphetamines, one thousand nanograms per	52
milliliter of urine;	53

(b)(ii) For cannabinoids, fifty nanograms per milliliter of	54
urine;	55

(c)(iii) For cocaine, including crack cocaine, three hundred	56
nanograms per milliliter of urine;	57

(d)(iv) For opiates, two thousand nanograms per milliliter of	58
urine;	59

(e)(v) For phencyclidine, twenty-five nanograms per	60
milliliter of urine.	61

(3)(c) The employee, through a qualifying chemical test	62
administered within thirty-two hours of an injury, is determined	63
to have one of the following controlled substances not prescribed	64
by the employee's physician in the employee's system that tests	65
above the following levels by a gas chromatography mass	66
spectrometry test:	67

(a)(i) For amphetamines, five hundred nanograms per	68
milliliter of urine;	69

(b)(ii) For cannabinoids, fifteen nanograms per milliliter of	70
urine;	71

(c)(iii) For cocaine, including crack cocaine, one hundred	72
fifty nanograms per milliliter of urine;	73

(d)(iv) For opiates, two thousand nanograms per milliliter of	74
urine;	75

(e)(v) For phencyclidine, twenty-five nanograms per	76
milliliter of urine.	77

(4)(d) The employee, through a qualifying chemical test	78
administered within thirty-two hours of an injury, is determined	79
to have barbiturates, benzodiazepines, methadone, or propoxyphene	80
in the employee's system that tests above levels established by	81
laboratories certified by the United States department of health	82
and human services.	83

(5) The(2) When the employee refuses to submit to a	84
requested chemical test, on the condition that that employee is or	85
was given notice that the refusal to submit to any chemical test	86
described in division (B)(1) may affect the employee's eligibility	87
for compensation and benefits under this chapter and Chapter 4121.	88
of the Revised Code.	89

(C)(1) For purposes of division (B) of this section, a	90
chemical test is a qualifying chemical test if it is administered	91
to an employee after an injury under at least one of the following	92
conditions:	93

(a) When the employee's employer had reasonable cause to	94
suspect that the employee may be intoxicated or under the	95
influence of a controlled substance not prescribed by the	96
employee's physician;	97

(b) At the request of a police officer pursuant to section	98
4511.191 of the Revised Code, and not at the request of the	99
employee's employer;	100

(c) At the request of a licensed physician who is not	101
employed by the employee's employer, and not at the request of the	102
employee's employer.	103

(2) As used in division (C)(1)(a) of this section,	104
"reasonable cause" means, but is not limited to, evidence that an	105
employee is or was using alcohol or a controlled substance drawn	106
from specific, objective facts and reasonable inferences drawn	107
from these facts in light of experience and training. These facts	108
and inferences may be based on, but are not limited to, any of the	109
following:	110

(a) Observable phenomena, such as direct observation of use,	111
possession, or distribution of alcohol or a controlled substance,	112
or of the physical symptoms of being under the influence of	113
alcohol or a controlled substance, such as but not limited to	114
slurred speech, dilated pupils, odor of alcohol or a controlled	115
substance, changes in affect, or dynamic mood swings;	116

(b) A pattern of abnormal conduct, erratic or aberrant	117
behavior, or deteriorating work performance such as frequent	118
absenteeism, excessive tardiness, or recurrent accidents, that	119
appears to be related to the use of alcohol or a controlled	120
substance, and does not appear to be attributable to other	121
factors;	122

(c) The identification of an employee as the focus of a	123
criminal investigation into unauthorized possession, use, or	124
trafficking of a controlled substance;	125

(d) A report of use of alcohol or a controlled substance	126
provided by a reliable and credible source;	127

(e) Repeated or flagrant violations of the safety or work	128
rules of the employee's employer, that are determined by the	129
employee's supervisor to pose a substantial risk of physical	130
injury or property damage and that appear to be related to the use	131
of alcohol or a controlled substance and that do not appear	132
attributable to other factors.	133

(D) Nothing in this section shall be construed to affect the	134
rights of an employer to test employees for alcohol or controlled	135
substance abuse.	136

Whenever, with respect to an employee of an employer who is	137
subject to and has complied with this chapter, there is	138
possibility of conflict with respect to the application of	139
workers' compensation laws because the contract of employment is	140
entered into and all or some portion of the work is or is to be	141
performed in a state or states other than Ohio, the employer and	142
the employee may agree to be bound by the laws of this state or by	143
the laws of some other state in which all or some portion of the	144
work of the employee is to be performed. The agreement shall be in	145
writing and shall be filed with the bureau of workers'	146
compensation within ten days after it is executed and shall remain	147
in force until terminated or modified by agreement of the parties	148
similarly filed. If the agreement is to be bound by the laws of	149
this state and the employer has complied with this chapter, then	150
the employee is entitled to compensation and benefits regardless	151
of where the injury occurs or the disease is contracted and the	152
rights of the employee and the employee's dependents under the	153
laws of this state are the exclusive remedy against the employer	154
on account of injury, disease, or death in the course of and	155
arising out of the employee's employment. If the agreement is to	156
be bound by the laws of another state and the employer has	157
complied with the laws of that state, the rights of the employee	158
and the employee's dependents under the laws of that state are the	159
exclusive remedy against the employer on account of injury,	160
disease, or death in the course of and arising out of the	161
employee's employment without regard to the place where the injury	162
was sustained or the disease contracted.	163

If any employee or the employee's dependents are awarded	164
workers' compensation benefits or recover damages from the	165
employer under the laws of another state, the amount awarded or	166
recovered, whether paid or to be paid in future installments,	167
shall be credited on the amount of any award of compensation or	168
benefits made to the employee or the employee's dependents by the	169
bureau.	170

If an employee is a resident of a state other than this state	171
and is insured under the workers' compensation law or similar laws	172
of a state other than this state, the employee and the employee's	173
dependents are not entitled to receive compensation or benefits	174
under this chapter, on account of injury, disease, or death	175
arising out of or in the course of employment while temporarily	176
within this state, and the rights of the employee and the	177
employee's dependents under the laws of the other state are the	178
exclusive remedy against the employer on account of the injury,	179
disease, or death.	180

Compensation or benefits are not payable to a claimant during	181
the period of confinement of the claimant in any state or federal	182
correctional institution whether in this or any other state for	183
conviction of violation of any state or federal criminal law.	184

Section 2. That existing section 4123.54 of the Revised Code	185
is hereby repealed.	186