As Passed by the Senate

125th General Assembly
Regular Session
2003-2004
Sub. H. B. No. 223


REPRESENTATIVES Gibbs, Cates, Schmidt, C. Evans, Calvert, Hagan, Aslanides, D. Evans, Buehrer, Setzer, Webster, McGregor, Raussen, Young, Faber, Peterson, Carmichael, Wolpert, Schlichter, Blasdel, Clancy, Collier, Core, Daniels, DeBose, Flowers, Gilb, Hoops, Martin, Niehaus, Raga, Reidelbach, Reinhard, Schaffer, Schneider

SENATORS Spada, Mumper, Wachtmann, Nein, Harris, Hottinger, Padgett, Austria



A BILL
To amend sections 4123.35 and 4123.54 of the Revised 1
Code to specify conditions under which chemical 2
testing of an employee may establish a rebuttable 3
presumption that the employee's injury was 4
proximately caused by use of alcohol or an 5
unprescribed controlled substance. 6


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

       Section 1. That sections 4123.35 and 4123.54 of the Revised 7
Code be amended to read as follows:8

       Sec. 4123.35.  (A) Except as provided in this section, every 9
employer mentioned in division (B)(2) of section 4123.01 of the 10
Revised Code, and every publicly owned utility shall pay11
semiannually in the months of January and July into the state12
insurance fund the amount of annual premium the administrator of13
workers' compensation fixes for the employment or occupation of14
the employer, the amount of which premium to be paid by each15
employer to be determined by the classifications, rules, and rates16
made and published by the administrator. The employer shall pay17
semiannually a further sum of money into the state insurance fund18
as may be ascertained to be due from the employer by applying the19
rules of the administrator, and a receipt or certificate20
certifying that payment has been made, along with a written notice 21
as is required in section 4123.54 of the Revised Code, shall be 22
mailed immediately to the employer by the bureau of workers' 23
compensation. The receipt or certificate is prima-facie evidence 24
of the payment of the premium, and the proper posting of the 25
notice constitutes the employer's compliance with the notice 26
requirement mandated in section 4123.54 of the Revised Code.27

       The bureau of workers' compensation shall verify with the28
secretary of state the existence of all corporations and29
organizations making application for workers' compensation30
coverage and shall require every such application to include the31
employer's federal identification number.32

       An employer as defined in division (B)(2) of section 4123.0133
of the Revised Code who has contracted with a subcontractor is34
liable for the unpaid premium due from any subcontractor with35
respect to that part of the payroll of the subcontractor that is36
for work performed pursuant to the contract with the employer.37

       Division (A) of this section providing for the payment of38
premiums semiannually does not apply to any employer who was a39
subscriber to the state insurance fund prior to January 1, 1914,40
or who may first become a subscriber to the fund in any month41
other than January or July. Instead, the semiannual premiums shall 42
be paid by those employers from time to time upon the expiration 43
of the respective periods for which payments into the fund have 44
been made by them.45

       The administrator shall adopt rules to permit employers to46
make periodic payments of the semiannual premium due under this47
division. The rules shall include provisions for the assessment of 48
interest charges, where appropriate, and for the assessment of49
penalties when an employer fails to make timely premium payments.50
An employer who timely pays the amounts due under this division is51
entitled to all of the benefits and protections of this chapter.52
Upon receipt of payment, the bureau immediately shall mail a53
receipt or certificate to the employer certifying that payment has54
been made, which receipt is prima-facie evidence of payment.55
Workers' compensation coverage under this chapter continues56
uninterrupted upon timely receipt of payment under this division.57

       Every public employer, except public employers that are58
self-insuring employers under this section, shall comply with59
sections 4123.38 to 4123.41, and 4123.48 of the Revised Code in60
regard to the contribution of moneys to the public insurance fund.61

       (B) Employers who will abide by the rules of the62
administrator and who may be of sufficient financial ability to63
render certain the payment of compensation to injured employees or64
the dependents of killed employees, and the furnishing of medical,65
surgical, nursing, and hospital attention and services and66
medicines, and funeral expenses, equal to or greater than is67
provided for in sections 4123.52, 4123.55 to 4123.62, and 4123.6468
to 4123.67 of the Revised Code, and who do not desire to insure69
the payment thereof or indemnify themselves against loss sustained70
by the direct payment thereof, upon a finding of such facts by the71
administrator, may be granted the privilege to pay individually72
compensation, and furnish medical, surgical, nursing, and hospital73
services and attention and funeral expenses directly to injured74
employees or the dependents of killed employees, thereby being75
granted status as a self-insuring employer. The administrator may76
charge employers who apply for the status as a self-insuring77
employer a reasonable application fee to cover the bureau's costs78
in connection with processing and making a determination with79
respect to an application.80

       All employers granted status as self-insuring employers shall 81
demonstrate sufficient financial and administrative ability to 82
assure that all obligations under this section are promptly met. 83
The administrator shall deny the privilege where the employer is84
unable to demonstrate the employer's ability to promptly meet all85
the obligations imposed on the employer by this section.86

       (1) The administrator shall consider, but is not limited to,87
the following factors, where applicable, in determining the88
employer's ability to meet all of the obligations imposed on the89
employer by this section:90

       (a) The employer employs a minimum of five hundred employees91
in this state;92

       (b) The employer has operated in this state for a minimum of93
two years, provided that an employer who has purchased, acquired,94
or otherwise succeeded to the operation of a business, or any part95
thereof, situated in this state that has operated for at least two96
years in this state, also shall qualify;97

       (c) Where the employer previously contributed to the state98
insurance fund or is a successor employer as defined by bureau99
rules, the amount of the buyout, as defined by bureau rules;100

       (d) The sufficiency of the employer's assets located in this101
state to insure the employer's solvency in paying compensation102
directly;103

       (e) The financial records, documents, and data, certified by104
a certified public accountant, necessary to provide the employer's105
full financial disclosure. The records, documents, and data106
include, but are not limited to, balance sheets and profit and107
loss history for the current year and previous four years.108

       (f) The employer's organizational plan for the administration 109
of the workers' compensation law;110

       (g) The employer's proposed plan to inform employees of the111
change from a state fund insurer to a self-insuring employer, the112
procedures the employer will follow as a self-insuring employer,113
and the employees' rights to compensation and benefits; and114

       (h) The employer has either an account in a financial115
institution in this state, or if the employer maintains an account116
with a financial institution outside this state, ensures that117
workers' compensation checks are drawn from the same account as118
payroll checks or the employer clearly indicates that payment will119
be honored by a financial institution in this state.120

       The administrator may waive the requirements of divisions121
(B)(1)(a) and (b) of this section and the requirement of division122
(B)(1)(e) of this section that the financial records, documents,123
and data be certified by a certified public accountant. The124
administrator shall adopt rules establishing the criteria that an125
employer shall meet in order for the administrator to waive the126
requirement of division (B)(1)(e) of this section. Such rules may127
require additional security of that employer pursuant to division128
(E) of section 4123.351 of the Revised Code.129

       The administrator shall not grant the status of self-insuring130
employer to the state, except that the administrator may grant the131
status of self-insuring employer to a state institution of higher132
education, excluding its hospitals, that meets the requirements of133
division (B)(2) of this section.134

       (2) When considering the application of a public employer,135
except for a board of county commissioners described in division136
(G) of section 4123.01 of the Revised Code, a board of a county137
hospital, or a publicly owned utility, the administrator shall138
verify that the public employer satisfies all of the following139
requirements as the requirements apply to that public employer:140

       (a) For the two-year period preceding application under this141
section, the public employer has maintained an unvoted debt142
capacity equal to at least two times the amount of the current143
annual premium established by the administrator under this chapter144
for that public employer for the year immediately preceding the145
year in which the public employer makes application under this146
section.147

       (b) For each of the two fiscal years preceding application148
under this section, the unreserved and undesignated year-end fund149
balance in the public employer's general fund is equal to at least150
five per cent of the public employer's general fund revenues for151
the fiscal year computed in accordance with generally accepted152
accounting principles.153

       (c) For the five-year period preceding application under this 154
section, the public employer, to the extent applicable, has155
complied fully with the continuing disclosure requirements156
established in rules adopted by the United States securities and157
exchange commission under 17 C.F.R. 240.15c 2-12.158

       (d) For the five-year period preceding application under this 159
section, the public employer has not had its local government fund 160
distribution withheld on account of the public employer being161
indebted or otherwise obligated to the state.162

       (e) For the five-year period preceding application under this 163
section, the public employer has not been under a fiscal watch or 164
fiscal emergency pursuant to section 118.023, 118.04, or 3316.03 165
of the Revised Code.166

       (f) For the public employer's fiscal year preceding167
application under this section, the public employer has obtained168
an annual financial audit as required under section 117.10 of the169
Revised Code, which has been released by the auditor of state170
within seven months after the end of the public employer's fiscal171
year.172

       (g) On the date of application, the public employer holds a173
debt rating of Aa3 or higher according to Moody's investors174
service, inc., or a comparable rating by an independent rating175
agency similar to Moody's investors service, inc.176

       (h) The public employer agrees to generate an annual177
accumulating book reserve in its financial statements reflecting178
an actuarially generated reserve adequate to pay projected claims179
under this chapter for the applicable period of time, as180
determined by the administrator.181

       (i) For a public employer that is a hospital, the public182
employer shall submit audited financial statements showing the183
hospital's overall liquidity characteristics, and the184
administrator shall determine, on an individual basis, whether the185
public employer satisfies liquidity standards equivalent to the186
liquidity standards of other public employers.187

       (j) Any additional criteria that the administrator adopts by188
rule pursuant to division (E) of this section.189

       The administrator shall not approve the application of a190
public employer, except for a board of county commissioners191
described in division (G) of section 4123.01 of the Revised Code,192
a board of a county hospital, or publicly owned utility, who does193
not satisfy all of the requirements listed in division (B)(2) of194
this section.195

       (C) A board of county commissioners described in division (G) 196
of section 4123.01 of the Revised Code, as an employer, that will 197
abide by the rules of the administrator and that may be of198
sufficient financial ability to render certain the payment of199
compensation to injured employees or the dependents of killed200
employees, and the furnishing of medical, surgical, nursing, and201
hospital attention and services and medicines, and funeral202
expenses, equal to or greater than is provided for in sections203
4123.52, 4123.55 to 4123.62, and 4123.64 to 4123.67 of the Revised204
Code, and that does not desire to insure the payment thereof or205
indemnify itself against loss sustained by the direct payment206
thereof, upon a finding of such facts by the administrator, may be207
granted the privilege to pay individually compensation, and208
furnish medical, surgical, nursing, and hospital services and209
attention and funeral expenses directly to injured employees or210
the dependents of killed employees, thereby being granted status211
as a self-insuring employer. The administrator may charge a board212
of county commissioners described in division (G) of section213
4123.01 of the Revised Code that applies for the status as a214
self-insuring employer a reasonable application fee to cover the215
bureau's costs in connection with processing and making a216
determination with respect to an application. All employers217
granted such status shall demonstrate sufficient financial and218
administrative ability to assure that all obligations under this219
section are promptly met. The administrator shall deny the220
privilege where the employer is unable to demonstrate the221
employer's ability to promptly meet all the obligations imposed on222
the employer by this section. The administrator shall consider,223
but is not limited to, the following factors, where applicable, in224
determining the employer's ability to meet all of the obligations225
imposed on the board as an employer by this section:226

       (1) The board as an employer employs a minimum of five227
hundred employees in this state;228

       (2) The board has operated in this state for a minimum of two 229
years;230

       (3) Where the board previously contributed to the state231
insurance fund or is a successor employer as defined by bureau232
rules, the amount of the buyout, as defined by bureau rules;233

       (4) The sufficiency of the board's assets located in this234
state to insure the board's solvency in paying compensation235
directly;236

       (5) The financial records, documents, and data, certified by237
a certified public accountant, necessary to provide the board's238
full financial disclosure. The records, documents, and data239
include, but are not limited to, balance sheets and profit and240
loss history for the current year and previous four years.241

       (6) The board's organizational plan for the administration of 242
the workers' compensation law;243

       (7) The board's proposed plan to inform employees of the244
proposed self-insurance, the procedures the board will follow as a245
self-insuring employer, and the employees' rights to compensation246
and benefits;247

       (8) The board has either an account in a financial248
institution in this state, or if the board maintains an account249
with a financial institution outside this state, ensures that250
workers' compensation checks are drawn from the same account as251
payroll checks or the board clearly indicates that payment will be252
honored by a financial institution in this state;253

       (9) The board shall provide the administrator a surety bond254
in an amount equal to one hundred twenty-five per cent of the255
projected losses as determined by the administrator.256

       (D) The administrator shall require a surety bond from all257
self-insuring employers, issued pursuant to section 4123.351 of258
the Revised Code, that is sufficient to compel, or secure to259
injured employees, or to the dependents of employees killed, the260
payment of compensation and expenses, which shall in no event be261
less than that paid or furnished out of the state insurance fund262
in similar cases to injured employees or to dependents of killed263
employees whose employers contribute to the fund, except when an264
employee of the employer, who has suffered the loss of a hand,265
arm, foot, leg, or eye prior to the injury for which compensation266
is to be paid, and thereafter suffers the loss of any other of the267
members as the result of any injury sustained in the course of and268
arising out of the employee's employment, the compensation to be269
paid by the self-insuring employer is limited to the disability270
suffered in the subsequent injury, additional compensation, if271
any, to be paid by the bureau out of the surplus created by272
section 4123.34 of the Revised Code.273

       (E) In addition to the requirements of this section, the274
administrator shall make and publish rules governing the manner of275
making application and the nature and extent of the proof required276
to justify a finding of fact by the administrator as to granting277
the status of a self-insuring employer, which rules shall be278
general in their application, one of which rules shall provide279
that all self-insuring employers shall pay into the state280
insurance fund such amounts as are required to be credited to the281
surplus fund in division (B) of section 4123.34 of the Revised282
Code. The administrator may adopt rules establishing requirements283
in addition to the requirements described in division (B)(2) of284
this section that a public employer shall meet in order to qualify285
for self-insuring status.286

       Employers shall secure directly from the bureau central287
offices application forms upon which the bureau shall stamp a288
designating number. Prior to submission of an application, an289
employer shall make available to the bureau, and the bureau shall290
review, the information described in division (B)(1) of this291
section, and public employers shall make available, and the bureau292
shall review, the information necessary to verify whether the293
public employer meets the requirements listed in division (B)(2)294
of this section. An employer shall file the completed application295
forms with an application fee, which shall cover the costs of296
processing the application, as established by the administrator,297
by rule, with the bureau at least ninety days prior to the298
effective date of the employer's new status as a self-insuring299
employer. The application form is not deemed complete until all300
the required information is attached thereto. The bureau shall301
only accept applications that contain the required information.302

       (F) The bureau shall review completed applications within a303
reasonable time. If the bureau determines to grant an employer the 304
status as a self-insuring employer, the bureau shall issue a305
statement, containing its findings of fact, that is prepared by306
the bureau and signed by the administrator. If the bureau307
determines not to grant the status as a self-insuring employer,308
the bureau shall notify the employer of the determination and309
require the employer to continue to pay its full premium into the310
state insurance fund. The administrator also shall adopt rules311
establishing a minimum level of performance as a criterion for312
granting and maintaining the status as a self-insuring employer313
and fixing time limits beyond which failure of the self-insuring314
employer to provide for the necessary medical examinations and315
evaluations may not delay a decision on a claim.316

       (G) The administrator shall adopt rules setting forth317
procedures for auditing the program of self-insuring employers.318
The bureau shall conduct the audit upon a random basis or whenever319
the bureau has grounds for believing that a self-insuring employer320
is not in full compliance with bureau rules or this chapter.321

       The administrator shall monitor the programs conducted by322
self-insuring employers, to ensure compliance with bureau323
requirements and for that purpose, shall develop and issue to324
self-insuring employers standardized forms for use by the325
self-insuring employer in all aspects of the self-insuring326
employers' direct compensation program and for reporting of327
information to the bureau.328

       The bureau shall receive and transmit to the self-insuring329
employer all complaints concerning any self-insuring employer. In330
the case of a complaint against a self-insuring employer, the331
administrator shall handle the complaint through the332
self-insurance division of the bureau. The bureau shall maintain a 333
file by employer of all complaints received that relate to the334
employer. The bureau shall evaluate each complaint and take335
appropriate action.336

       The administrator shall adopt as a rule a prohibition against337
any self-insuring employer from harassing, dismissing, or338
otherwise disciplining any employee making a complaint, which rule339
shall provide for a financial penalty to be levied by the340
administrator payable by the offending self-insuring employer.341

       (H) For the purpose of making determinations as to whether to 342
grant status as a self-insuring employer, the administrator may343
subscribe to and pay for a credit reporting service that offers344
financial and other business information about individual345
employers. The costs in connection with the bureau's subscription346
or individual reports from the service about an applicant may be347
included in the application fee charged employers under this348
section.349

       (I) The administrator, notwithstanding other provisions of350
this chapter, may permit a self-insuring employer to resume351
payment of premiums to the state insurance fund with appropriate352
credit modifications to the employer's basic premium rate as such353
rate is determined pursuant to section 4123.29 of the Revised354
Code.355

       (J) On the first day of July of each year, the administrator356
shall calculate separately each self-insuring employer's357
assessments for the safety and hygiene fund, administrative costs358
pursuant to section 4123.342 of the Revised Code, and for the359
portion of the surplus fund under division (B) of section 4123.34360
of the Revised Code that is not used for handicapped361
reimbursement, on the basis of the paid compensation attributable362
to the individual self-insuring employer according to the363
following calculation:364

       (1) The total assessment against all self-insuring employers365
as a class for each fund and for the administrative costs for the366
year that the assessment is being made, as determined by the367
administrator, divided by the total amount of paid compensation368
for the previous calendar year attributable to all amenable369
self-insuring employers;370

       (2) Multiply the quotient in division (J)(1) of this section371
by the total amount of paid compensation for the previous calendar372
year that is attributable to the individual self-insuring employer373
for whom the assessment is being determined. Each self-insuring374
employer shall pay the assessment that results from this375
calculation, unless the assessment resulting from this calculation376
falls below a minimum assessment, which minimum assessment the377
administrator shall determine on the first day of July of each378
year with the advice and consent of the workers' compensation379
oversight commission, in which event, the self-insuring employer380
shall pay the minimum assessment.381

       In determining the total amount due for the total assessment382
against all self-insuring employers as a class for each fund and383
the administrative assessment, the administrator shall reduce384
proportionately the total for each fund and assessment by the385
amount of money in the self-insurance assessment fund as of the386
date of the computation of the assessment.387

       The administrator shall calculate the assessment for the388
portion of the surplus fund under division (B) of section 4123.34389
of the Revised Code that is used for handicapped reimbursement in390
the same manner as set forth in divisions (J)(1) and (2) of this391
section except that the administrator shall calculate the total392
assessment for this portion of the surplus fund only on the basis393
of those self-insuring employers that retain participation in the394
handicapped reimbursement program and the individual self-insuring395
employer's proportion of paid compensation shall be calculated396
only for those self-insuring employers who retain participation in397
the handicapped reimbursement program. The administrator, as the398
administrator determines appropriate, may determine the total399
assessment for the handicapped portion of the surplus fund in400
accordance with sound actuarial principles.401

       The administrator shall calculate the assessment for the402
portion of the surplus fund under division (B) of section 4123.34403
of the Revised Code that under division (D) of section 4121.66 of404
the Revised Code is used for rehabilitation costs in the same405
manner as set forth in divisions (J)(1) and (2) of this section,406
except that the administrator shall calculate the total assessment407
for this portion of the surplus fund only on the basis of those408
self-insuring employers who have not made the election to make409
payments directly under division (D) of section 4121.66 of the410
Revised Code and an individual self-insuring employer's proportion411
of paid compensation only for those self-insuring employers who412
have not made that election.413

       An employer who no longer is a self-insuring employer in this414
state or who no longer is operating in this state, shall continue415
to pay assessments for administrative costs and for the portion of416
the surplus fund under division (B) of section 4123.34 of the417
Revised Code that is not used for handicapped reimbursement, based418
upon paid compensation attributable to claims that occurred while419
the employer was a self-insuring employer within this state.420

       (K) There is hereby created in the state treasury the421
self-insurance assessment fund. All investment earnings of the422
fund shall be deposited in the fund. The administrator shall use423
the money in the self-insurance assessment fund only for424
administrative costs as specified in section 4123.341 of the425
Revised Code.426

       (L) Every self-insuring employer shall certify, in affidavit427
form subject to the penalty for perjury, to the bureau the amount428
of the self-insuring employer's paid compensation for the previous429
calendar year. In reporting paid compensation paid for the430
previous year, a self-insuring employer shall exclude from the431
total amount of paid compensation any reimbursement the432
self-insuring employer receives in the previous calendar year from433
the surplus fund pursuant to section 4123.512 of the Revised Code434
for any paid compensation. The self-insuring employer also shall435
exclude from the paid compensation reported any amount recovered436
under section 4123.931 of the Revised Code and any amount that is437
determined not to have been payable to or on behalf of a claimant438
in any final administrative or judicial proceeding. The439
self-insuring employer shall exclude such amounts from the paid440
compensation reported in the reporting period subsequent to the441
date the determination is made. The administrator shall adopt442
rules, in accordance with Chapter 119. of the Revised Code,443
establishing the date by which self-insuring employers must submit444
such information and the amount of the assessments provided for in445
division (J) of this section for employers who have been granted446
self-insuring status within the last calendar year.447

       The administrator shall include any assessment that remains448
unpaid for previous assessment periods in the calculation and449
collection of any assessments due under this division or division450
(J) of this section.451

       (M) As used in this section, "paid compensation" means all452
amounts paid by a self-insuring employer for living maintenance453
benefits, all amounts for compensation paid pursuant to sections454
4121.63, 4121.67, 4123.56, 4123.57, 4123.58, 4123.59, 4123.60, and455
4123.64 of the Revised Code, all amounts paid as wages in lieu of456
such compensation, all amounts paid in lieu of such compensation457
under a nonoccupational accident and sickness program fully funded458
by the self-insuring employer, and all amounts paid by a459
self-insuring employer for a violation of a specific safety460
standard pursuant to Section 35 of Article II, Ohio Constitution461
and section 4121.47 of the Revised Code.462

       (N) Should any section of this chapter or Chapter 4121. of463
the Revised Code providing for self-insuring employers'464
assessments based upon compensation paid be declared465
unconstitutional by a final decision of any court, then that466
section of the Revised Code declared unconstitutional shall revert467
back to the section in existence prior to November 3, 1989,468
providing for assessments based upon payroll.469

       (O) The administrator may grant a self-insuring employer the470
privilege to self-insure a construction project entered into by471
the self-insuring employer that is scheduled for completion within472
six years after the date the project begins, and the total cost of473
which is estimated to exceed one hundred million dollars or, for474
employers described in division (R) of this section, if the475
construction project is estimated to exceed twenty-five million476
dollars. The administrator may waive such cost and time criteria477
and grant a self-insuring employer the privilege to self-insure a478
construction project regardless of the time needed to complete the479
construction project and provided that the cost of the480
construction project is estimated to exceed fifty million dollars.481
A self-insuring employer who desires to self-insure a construction482
project shall submit to the administrator an application listing483
the dates the construction project is scheduled to begin and end,484
the estimated cost of the construction project, the contractors485
and subcontractors whose employees are to be self-insured by the486
self-insuring employer, the provisions of a safety program that is487
specifically designed for the construction project, and a488
statement as to whether a collective bargaining agreement489
governing the rights, duties, and obligations of each of the490
parties to the agreement with respect to the construction project491
exists between the self-insuring employer and a labor492
organization.493

       A self-insuring employer may apply to self-insure the494
employees of either of the following:495

       (1) All contractors and subcontractors who perform labor or496
work or provide materials for the construction project;497

       (2) All contractors and, at the administrator's discretion, a 498
substantial number of all the subcontractors who perform labor or 499
work or provide materials for the construction project.500

       Upon approval of the application, the administrator shall501
mail a certificate granting the privilege to self-insure the502
construction project to the self-insuring employer. The503
certificate shall contain the name of the self-insuring employer504
and the name, address, and telephone number of the self-insuring505
employer's representatives who are responsible for administering506
workers' compensation claims for the construction project. The507
self-insuring employer shall post the certificate in a conspicuous508
place at the site of the construction project.509

       The administrator shall maintain a record of the contractors510
and subcontractors whose employees are covered under the511
certificate issued to the self-insured employer. A self-insuring512
employer immediately shall notify the administrator when any513
contractor or subcontractor is added or eliminated from inclusion514
under the certificate.515

       Upon approval of the application, the self-insuring employer516
is responsible for the administration and payment of all claims517
under this chapter and Chapter 4121. of the Revised Code for the518
employees of the contractor and subcontractors covered under the519
certificate who receive injuries or are killed in the course of520
and arising out of employment on the construction project, or who521
contract an occupational disease in the course of employment on522
the construction project. For purposes of this chapter and Chapter 523
4121. of the Revised Code, a claim that is administered and paid 524
in accordance with this division is considered a claim against the 525
self-insuring employer listed in the certificate. A contractor or 526
subcontractor included under the certificate shall report to the 527
self-insuring employer listed in the certificate, all claims that 528
arise under this chapter and Chapter 4121. of the Revised Code in 529
connection with the construction project for which the certificate 530
is issued.531

       A self-insuring employer who complies with this division is532
entitled to the protections provided under this chapter and533
Chapter 4121. of the Revised Code with respect to the employees of534
the contractors and subcontractors covered under a certificate535
issued under this division for death or injuries that arise out536
of, or death, injuries, or occupational diseases that arise in the537
course of, those employees' employment on that construction538
project, as if the employees were employees of the self-insuring539
employer, provided that the self-insuring employer also complies540
with this section. No employee of the contractors and541
subcontractors covered under a certificate issued under this542
division shall be considered the employee of the self-insuring543
employer listed in that certificate for any purposes other than544
this chapter and Chapter 4121. of the Revised Code. Nothing in545
this division gives a self-insuring employer authority to control546
the means, manner, or method of employment of the employees of the547
contractors and subcontractors covered under a certificate issued548
under this division.549

       The contractors and subcontractors included under a550
certificate issued under this division are entitled to the551
protections provided under this chapter and Chapter 4121. of the552
Revised Code with respect to the contractor's or subcontractor's553
employees who are employed on the construction project which is554
the subject of the certificate, for death or injuries that arise555
out of, or death, injuries, or occupational diseases that arise in556
the course of, those employees' employment on that construction557
project.558

       The contractors and subcontractors included under a559
certificate issued under this division shall identify in their560
payroll records the employees who are considered the employees of561
the self-insuring employer listed in that certificate for purposes562
of this chapter and Chapter 4121. of the Revised Code, and the563
amount that those employees earned for employment on the564
construction project that is the subject of that certificate.565
Notwithstanding any provision to the contrary under this chapter566
and Chapter 4121. of the Revised Code, the administrator shall567
exclude the payroll that is reported for employees who are568
considered the employees of the self-insuring employer listed in569
that certificate, and that the employees earned for employment on570
the construction project that is the subject of that certificate,571
when determining those contractors' or subcontractors' premiums or572
assessments required under this chapter and Chapter 4121. of the573
Revised Code. A self-insuring employer issued a certificate under574
this division shall include in the amount of paid compensation it575
reports pursuant to division (L) of this section, the amount of576
paid compensation the self-insuring employer paid pursuant to this577
division for the previous calendar year.578

       Nothing in this division shall be construed as altering the579
rights of employees under this chapter and Chapter 4121. of the580
Revised Code as those rights existed prior to September 17, 1996.581
Nothing in this division shall be construed as altering the rights582
devolved under sections 2305.31 and 4123.82 of the Revised Code as583
those rights existed prior to September 17, 1996.584

       As used in this division, "privilege to self-insure a585
construction project" means privilege to pay individually586
compensation, and to furnish medical, surgical, nursing, and587
hospital services and attention and funeral expenses directly to588
injured employees or the dependents of killed employees.589

       (P) A self-insuring employer whose application is granted590
under division (O) of this section shall designate a safety591
professional to be responsible for the administration and592
enforcement of the safety program that is specifically designed593
for the construction project that is the subject of the594
application.595

       A self-insuring employer whose application is granted under596
division (O) of this section shall employ an ombudsperson for the597
construction project that is the subject of the application. The598
ombudsperson shall have experience in workers' compensation or the599
construction industry, or both. The ombudsperson shall perform all 600
of the following duties:601

       (1) Communicate with and provide information to employees who 602
are injured in the course of, or whose injury arises out of603
employment on the construction project, or who contract an604
occupational disease in the course of employment on the605
construction project;606

       (2) Investigate the status of a claim upon the request of an607
employee to do so;608

       (3) Provide information to claimants, third party609
administrators, employers, and other persons to assist those610
persons in protecting their rights under this chapter and Chapter611
4121. of the Revised Code.612

       A self-insuring employer whose application is granted under613
division (O) of this section shall post the name of the safety614
professional and the ombudsperson and instructions for contacting615
the safety professional and the ombudsperson in a conspicuous616
place at the site of the construction project.617

       (Q) The administrator may consider all of the following when618
deciding whether to grant a self-insuring employer the privilege619
to self-insure a construction project as provided under division620
(O) of this section:621

       (1) Whether the self-insuring employer has an organizational622
plan for the administration of the workers' compensation law;623

       (2) Whether the safety program that is specifically designed624
for the construction project provides for the safety of employees625
employed on the construction project, is applicable to all626
contractors and subcontractors who perform labor or work or627
provide materials for the construction project, and has as a628
component, a safety training program that complies with standards629
adopted pursuant to the "Occupational Safety and Health Act of630
1970," 84 Stat. 1590, 29 U.S.C.A. 651, and provides for continuing631
management and employee involvement;632

       (3) Whether granting the privilege to self-insure the633
construction project will reduce the costs of the construction634
project;635

       (4) Whether the self-insuring employer has employed an636
ombudsperson as required under division (P) of this section;637

       (5) Whether the self-insuring employer has sufficient surety638
to secure the payment of claims for which the self-insuring639
employer would be responsible pursuant to the granting of the640
privilege to self-insure a construction project under division (O)641
of this section.642

       (R) As used in divisions (O), (P), and (Q), "self-insuring643
employer" includes the following employers, whether or not they644
have been granted the status of being a self-insuring employer645
under division (B) of this section:646

        (1) A state institution of higher education;647

        (2) A school district;648

        (3) A county school financing district;649

        (4) An educational service center;650

        (5) A community school established under Chapter 3314. of the 651
Revised Code.652

        (S) As used in this section:653

       (1) "Unvoted debt capacity" means the amount of money that a654
public employer may borrow without voter approval of a tax levy;655

       (2) "State institution of higher education" means the state656
universities listed in section 3345.011 of the Revised Code,657
community colleges created pursuant to Chapter 3354. of the658
Revised Code, university branches created pursuant to Chapter659
3355. of the Revised Code, technical colleges created pursuant to660
Chapter 3357. of the Revised Code, and state community colleges661
created pursuant to Chapter 3358. of the Revised Code.662

       Sec. 4123.54.  (A) Every employee, who is injured or who663
contracts an occupational disease, and the dependents of each664
employee who is killed, or dies as the result of an occupational665
disease contracted in the course of employment, wherever such666
injury has occurred or occupational disease has been contracted,667
provided the same were not:668

       (1) Purposely self-inflicted; or669

       (2) Caused by the employee being intoxicated or under the670
influence of a controlled substance not prescribed by a physician671
where the intoxication or being under the influence of the672
controlled substance not prescribed by a physician was the673
proximate cause of the injury, is entitled to receive, either674
directly from the employee's self-insuring employer as provided in675
section 4123.35 of the Revised Code, or from the state insurance676
fund, the compensation for loss sustained on account of the677
injury, occupational disease, or death, and the medical, nurse,678
and hospital services and medicines, and the amount of funeral679
expenses in case of death, as are provided by this chapter.680

       (B) For the purpose of this section, provided that an681
employee is given or has been givenemployer has posted written682
notice to employees that the results of, or the employee's refusal683
to submit to, any chemical test described under this division may 684
affect the employee's eligibility for compensation and benefits 685
pursuant to this chapter and Chapter 4121. of the Revised Code,686
there is a rebuttable presumption that an employee is intoxicated687
or under the influence of a controlled substance not prescribed by 688
athe employee's physician and that being intoxicated or under the 689
influence of a controlled substance not prescribed by athe 690
employee's physician is the proximate cause of an injury when691
under either of the following conditions:692

       (1) When any one or more of the following is true:693

       (1)(a) The employee, through a qualifying chemical test 694
administered within eight hours of an injury, is determined to 695
have an alcohol concentration level equal to or in excess of the 696
levels established in divisions (A)(2) to (7) of section 4511.19 697
of the Revised Code;698

       (2)(b) The employee, through a qualifying chemical test 699
administered within thirty-two hours of an injury, is determined 700
to have one of the following controlled substances not prescribed 701
by the employee's physician in the employee's system that tests 702
above the following levels in an enzyme multiplied immunoassay 703
technique screening test and above the levels established in 704
division (B)(3) of this section in a gas chromatography mass 705
spectrometry test:706

       (a)(i) For amphetamines, one thousand nanograms per 707
milliliter of urine;708

       (b)(ii) For cannabinoids, fifty nanograms per milliliter of709
urine;710

       (c)(iii) For cocaine, including crack cocaine, three hundred711
nanograms per milliliter of urine;712

       (d)(iv) For opiates, two thousand nanograms per milliliter of713
urine;714

       (e)(v) For phencyclidine, twenty-five nanograms per 715
milliliter of urine.716

       (3)(c) The employee, through a qualifying chemical test 717
administered within thirty-two hours of an injury, is determined 718
to have one of the following controlled substances not prescribed 719
by the employee's physician in the employee's system that tests 720
above the following levels by a gas chromatography mass 721
spectrometry test:722

       (a)(i) For amphetamines, five hundred nanograms per 723
milliliter of urine;724

       (b)(ii) For cannabinoids, fifteen nanograms per milliliter of725
urine;726

       (c)(iii) For cocaine, including crack cocaine, one hundred 727
fifty nanograms per milliliter of urine;728

       (d)(iv) For opiates, two thousand nanograms per milliliter of729
urine;730

       (e)(v) For phencyclidine, twenty-five nanograms per 731
milliliter of urine.732

       (4)(d) The employee, through a qualifying chemical test 733
administered within thirty-two hours of an injury, is determined 734
to have barbiturates, benzodiazepines, methadone, or propoxyphene 735
in the employee's system that tests above levels established by736
laboratories certified by the United States department of health737
and human services.738

       (5) The(2) When the employee refuses to submit to a 739
requested chemical test, on the condition that that employee is or 740
was given notice that the refusal to submit to any chemical test 741
described in division (B)(1) may affect the employee's eligibility 742
for compensation and benefits under this chapter and Chapter 4121. 743
of the Revised Code.744

       (C)(1) For purposes of division (B) of this section, a 745
chemical test is a qualifying chemical test if it is administered 746
to an employee after an injury under at least one of the following 747
conditions:748

       (a) When the employee's employer had reasonable cause to 749
suspect that the employee may be intoxicated or under the 750
influence of a controlled substance not prescribed by the 751
employee's physician;752

       (b) At the request of a police officer pursuant to section 753
4511.191 of the Revised Code, and not at the request of the 754
employee's employer;755

       (c) At the request of a licensed physician who is not 756
employed by the employee's employer, and not at the request of the 757
employee's employer.758

       (2) As used in division (C)(1)(a) of this section, 759
"reasonable cause" means, but is not limited to, evidence that an 760
employee is or was using alcohol or a controlled substance drawn 761
from specific, objective facts and reasonable inferences drawn 762
from these facts in light of experience and training. These facts 763
and inferences may be based on, but are not limited to, any of the 764
following:765

       (a) Observable phenomena, such as direct observation of use, 766
possession, or distribution of alcohol or a controlled substance, 767
or of the physical symptoms of being under the influence of 768
alcohol or a controlled substance, such as but not limited to 769
slurred speech, dilated pupils, odor of alcohol or a controlled 770
substance, changes in affect, or dynamic mood swings;771

       (b) A pattern of abnormal conduct, erratic or aberrant 772
behavior, or deteriorating work performance such as frequent 773
absenteeism, excessive tardiness, or recurrent accidents, that 774
appears to be related to the use of alcohol or a controlled 775
substance, and does not appear to be attributable to other 776
factors;777

       (c) The identification of an employee as the focus of a 778
criminal investigation into unauthorized possession, use, or 779
trafficking of a controlled substance;780

       (d) A report of use of alcohol or a controlled substance 781
provided by a reliable and credible source;782

       (e) Repeated or flagrant violations of the safety or work 783
rules of the employee's employer, that are determined by the 784
employee's supervisor to pose a substantial risk of physical 785
injury or property damage and that appear to be related to the use 786
of alcohol or a controlled substance and that do not appear 787
attributable to other factors.788

       (D) Nothing in this section shall be construed to affect the 789
rights of an employer to test employees for alcohol or controlled 790
substance abuse.791

       (E) For the purpose of this section, laboratories certified 792
by the United States department of health and human services or 793
laboratories that meet or exceed the standards of that department 794
for laboratory certification shall be used for processing the test 795
results of a qualifying chemical test.796

       (F) The written notice required by division (B) of this 797
section shall be the same size or larger then the certificate of 798
premium payment notice furnished by the bureau of workers'799
compensation and shall be posted by the employer in the same 800
location as the certificate of premium payment notice or the 801
certificate of self-insurance.802

       (G) Whenever, with respect to an employee of an employer who 803
is subject to and has complied with this chapter, there is804
possibility of conflict with respect to the application of805
workers' compensation laws because the contract of employment is806
entered into and all or some portion of the work is or is to be807
performed in a state or states other than Ohio, the employer and808
the employee may agree to be bound by the laws of this state or by809
the laws of some other state in which all or some portion of the810
work of the employee is to be performed. The agreement shall be in 811
writing and shall be filed with the bureau of workers'812
compensation within ten days after it is executed and shall remain813
in force until terminated or modified by agreement of the parties814
similarly filed. If the agreement is to be bound by the laws of815
this state and the employer has complied with this chapter, then816
the employee is entitled to compensation and benefits regardless817
of where the injury occurs or the disease is contracted and the818
rights of the employee and the employee's dependents under the819
laws of this state are the exclusive remedy against the employer820
on account of injury, disease, or death in the course of and821
arising out of the employee's employment. If the agreement is to822
be bound by the laws of another state and the employer has823
complied with the laws of that state, the rights of the employee824
and the employee's dependents under the laws of that state are the825
exclusive remedy against the employer on account of injury,826
disease, or death in the course of and arising out of the827
employee's employment without regard to the place where the injury828
was sustained or the disease contracted.829

       If any employee or the employee's dependents are awarded830
workers' compensation benefits or recover damages from the831
employer under the laws of another state, the amount awarded or832
recovered, whether paid or to be paid in future installments,833
shall be credited on the amount of any award of compensation or834
benefits made to the employee or the employee's dependents by the835
bureau.836

       If an employee is a resident of a state other than this state837
and is insured under the workers' compensation law or similar laws838
of a state other than this state, the employee and the employee's839
dependents are not entitled to receive compensation or benefits840
under this chapter, on account of injury, disease, or death841
arising out of or in the course of employment while temporarily842
within this state, and the rights of the employee and the843
employee's dependents under the laws of the other state are the844
exclusive remedy against the employer on account of the injury,845
disease, or death.846

       (H) Compensation or benefits are not payable to a claimant847
during the period of confinement of the claimant in any state or848
federal correctional institution whether in this or any other 849
state for conviction of violation of any state or federal criminal 850
law.851

       Section 2. That existing sections 4123.35 and 4123.54 of the 852
Revised Code are hereby repealed.853

       Section 3.  Section 4123.35 of the Revised Code is presented 854
in this act as a composite of the section as amended by both H.B. 855
675 and Sub. S.B. 227 of the 124th General Assembly. The General 856
Assembly, applying the principle stated in division (B) of section 857
1.52 of the Revised Code that amendments are to be harmonized if 858
reasonably capable of simultaneous operation, finds that the 859
composite is the resulting version of the section in effect prior 860
to the effective date of the section as presented in this act.861