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

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 pay	11
semiannually in the months of January and July into the state	12
insurance fund the amount of annual premium the administrator of	13
workers' compensation fixes for the employment or occupation of	14
the employer, the amount of which premium to be paid by each	15
employer to be determined by the classifications, rules, and rates	16
made and published by the administrator. The employer shall pay	17
semiannually a further sum of money into the state insurance fund	18
as may be ascertained to be due from the employer by applying the	19
rules of the administrator, and a receipt or certificate	20
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 the	28
secretary of state the existence of all corporations and	29
organizations making application for workers' compensation	30
coverage and shall require every such application to include the	31
employer's federal identification number.	32

An employer as defined in division (B)(2) of section 4123.01	33
of the Revised Code who has contracted with a subcontractor is	34
liable for the unpaid premium due from any subcontractor with	35
respect to that part of the payroll of the subcontractor that is	36
for work performed pursuant to the contract with the employer.	37

Division (A) of this section providing for the payment of	38
premiums semiannually does not apply to any employer who was a	39
subscriber to the state insurance fund prior to January 1, 1914,	40
or who may first become a subscriber to the fund in any month	41
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 to	46
make periodic payments of the semiannual premium due under this	47
division. The rules shall include provisions for the assessment of	48
interest charges, where appropriate, and for the assessment of	49
penalties when an employer fails to make timely premium payments.	50
An employer who timely pays the amounts due under this division is	51
entitled to all of the benefits and protections of this chapter.	52
Upon receipt of payment, the bureau immediately shall mail a	53
receipt or certificate to the employer certifying that payment has	54
been made, which receipt is prima-facie evidence of payment.	55
Workers' compensation coverage under this chapter continues	56
uninterrupted upon timely receipt of payment under this division.	57

Every public employer, except public employers that are	58
self-insuring employers under this section, shall comply with	59
sections 4123.38 to 4123.41, and 4123.48 of the Revised Code in	60
regard to the contribution of moneys to the public insurance fund.	61

(B) Employers who will abide by the rules of the	62
administrator and who may be of sufficient financial ability to	63
render certain the payment of compensation to injured employees or	64
the dependents of killed employees, and the furnishing of medical,	65
surgical, nursing, and hospital attention and services and	66
medicines, and funeral expenses, equal to or greater than is	67
provided for in sections 4123.52, 4123.55 to 4123.62, and 4123.64	68
to 4123.67 of the Revised Code, and who do not desire to insure	69
the payment thereof or indemnify themselves against loss sustained	70
by the direct payment thereof, upon a finding of such facts by the	71
administrator, may be granted the privilege to pay individually	72
compensation, and furnish medical, surgical, nursing, and hospital	73
services and attention and funeral expenses directly to injured	74
employees or the dependents of killed employees, thereby being	75
granted status as a self-insuring employer. The administrator may	76
charge employers who apply for the status as a self-insuring	77
employer a reasonable application fee to cover the bureau's costs	78
in connection with processing and making a determination with	79
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 is	84
unable to demonstrate the employer's ability to promptly meet all	85
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 the	88
employer's ability to meet all of the obligations imposed on the	89
employer by this section:	90

(a) The employer employs a minimum of five hundred employees	91
in this state;	92

(b) The employer has operated in this state for a minimum of	93
two years, provided that an employer who has purchased, acquired,	94
or otherwise succeeded to the operation of a business, or any part	95
thereof, situated in this state that has operated for at least two	96
years in this state, also shall qualify;	97

(c) Where the employer previously contributed to the state	98
insurance fund or is a successor employer as defined by bureau	99
rules, the amount of the buyout, as defined by bureau rules;	100

(d) The sufficiency of the employer's assets located in this	101
state to insure the employer's solvency in paying compensation	102
directly;	103

(e) The financial records, documents, and data, certified by	104
a certified public accountant, necessary to provide the employer's	105
full financial disclosure. The records, documents, and data	106
include, but are not limited to, balance sheets and profit and	107
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 the	111
change from a state fund insurer to a self-insuring employer, the	112
procedures the employer will follow as a self-insuring employer,	113
and the employees' rights to compensation and benefits; and	114

(h) The employer has either an account in a financial	115
institution in this state, or if the employer maintains an account	116
with a financial institution outside this state, ensures that	117
workers' compensation checks are drawn from the same account as	118
payroll checks or the employer clearly indicates that payment will	119
be honored by a financial institution in this state.	120

The administrator may waive the requirements of divisions	121
(B)(1)(a) and (b) of this section and the requirement of division	122
(B)(1)(e) of this section that the financial records, documents,	123
and data be certified by a certified public accountant. The	124
administrator shall adopt rules establishing the criteria that an	125
employer shall meet in order for the administrator to waive the	126
requirement of division (B)(1)(e) of this section. Such rules may	127
require additional security of that employer pursuant to division	128
(E) of section 4123.351 of the Revised Code.	129

The administrator shall not grant the status of self-insuring	130
employer to the state, except that the administrator may grant the	131
status of self-insuring employer to a state institution of higher	132
education, excluding its hospitals, that meets the requirements of	133
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 division	136
(G) of section 4123.01 of the Revised Code, a board of a county	137
hospital, or a publicly owned utility, the administrator shall	138
verify that the public employer satisfies all of the following	139
requirements as the requirements apply to that public employer:	140

(a) For the two-year period preceding application under this	141
section, the public employer has maintained an unvoted debt	142
capacity equal to at least two times the amount of the current	143
annual premium established by the administrator under this chapter	144
for that public employer for the year immediately preceding the	145
year in which the public employer makes application under this	146
section.	147

(b) For each of the two fiscal years preceding application	148
under this section, the unreserved and undesignated year-end fund	149
balance in the public employer's general fund is equal to at least	150
five per cent of the public employer's general fund revenues for	151
the fiscal year computed in accordance with generally accepted	152
accounting principles.	153

(c) For the five-year period preceding application under this	154
section, the public employer, to the extent applicable, has	155
complied fully with the continuing disclosure requirements	156
established in rules adopted by the United States securities and	157
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 being	161
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 preceding	167
application under this section, the public employer has obtained	168
an annual financial audit as required under section 117.10 of the	169
Revised Code, which has been released by the auditor of state	170
within seven months after the end of the public employer's fiscal	171
year.	172

(g) On the date of application, the public employer holds a	173
debt rating of Aa3 or higher according to Moody's investors	174
service, inc., or a comparable rating by an independent rating	175
agency similar to Moody's investors service, inc.	176

(h) The public employer agrees to generate an annual	177
accumulating book reserve in its financial statements reflecting	178
an actuarially generated reserve adequate to pay projected claims	179
under this chapter for the applicable period of time, as	180
determined by the administrator.	181

(i) For a public employer that is a hospital, the public	182
employer shall submit audited financial statements showing the	183
hospital's overall liquidity characteristics, and the	184
administrator shall determine, on an individual basis, whether the	185
public employer satisfies liquidity standards equivalent to the	186
liquidity standards of other public employers.	187

(j) Any additional criteria that the administrator adopts by	188
rule pursuant to division (E) of this section.	189

The administrator shall not approve the application of a	190
public employer, except for a board of county commissioners	191
described in division (G) of section 4123.01 of the Revised Code,	192
a board of a county hospital, or publicly owned utility, who does	193
not satisfy all of the requirements listed in division (B)(2) of	194
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 of	198
sufficient financial ability to render certain the payment of	199
compensation to injured employees or the dependents of killed	200
employees, and the furnishing of medical, surgical, nursing, and	201
hospital attention and services and medicines, and funeral	202
expenses, equal to or greater than is provided for in sections	203
4123.52, 4123.55 to 4123.62, and 4123.64 to 4123.67 of the Revised	204
Code, and that does not desire to insure the payment thereof or	205
indemnify itself against loss sustained by the direct payment	206
thereof, upon a finding of such facts by the administrator, may be	207
granted the privilege to pay individually compensation, and	208
furnish medical, surgical, nursing, and hospital services and	209
attention and funeral expenses directly to injured employees or	210
the dependents of killed employees, thereby being granted status	211
as a self-insuring employer. The administrator may charge a board	212
of county commissioners described in division (G) of section	213
4123.01 of the Revised Code that applies for the status as a	214
self-insuring employer a reasonable application fee to cover the	215
bureau's costs in connection with processing and making a	216
determination with respect to an application. All employers	217
granted such status shall demonstrate sufficient financial and	218
administrative ability to assure that all obligations under this	219
section are promptly met. The administrator shall deny the	220
privilege where the employer is unable to demonstrate the	221
employer's ability to promptly meet all the obligations imposed on	222
the employer by this section. The administrator shall consider,	223
but is not limited to, the following factors, where applicable, in	224
determining the employer's ability to meet all of the obligations	225
imposed on the board as an employer by this section:	226

(1) The board as an employer employs a minimum of five	227
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 state	231
insurance fund or is a successor employer as defined by bureau	232
rules, the amount of the buyout, as defined by bureau rules;	233

(4) The sufficiency of the board's assets located in this	234
state to insure the board's solvency in paying compensation	235
directly;	236

(5) The financial records, documents, and data, certified by	237
a certified public accountant, necessary to provide the board's	238
full financial disclosure. The records, documents, and data	239
include, but are not limited to, balance sheets and profit and	240
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 the	244
proposed self-insurance, the procedures the board will follow as a	245
self-insuring employer, and the employees' rights to compensation	246
and benefits;	247

(8) The board has either an account in a financial	248
institution in this state, or if the board maintains an account	249
with a financial institution outside this state, ensures that	250
workers' compensation checks are drawn from the same account as	251
payroll checks or the board clearly indicates that payment will be	252
honored by a financial institution in this state;	253

(9) The board shall provide the administrator a surety bond	254
in an amount equal to one hundred twenty-five per cent of the	255
projected losses as determined by the administrator.	256

(D) The administrator shall require a surety bond from all	257
self-insuring employers, issued pursuant to section 4123.351 of	258
the Revised Code, that is sufficient to compel, or secure to	259
injured employees, or to the dependents of employees killed, the	260
payment of compensation and expenses, which shall in no event be	261
less than that paid or furnished out of the state insurance fund	262
in similar cases to injured employees or to dependents of killed	263
employees whose employers contribute to the fund, except when an	264
employee of the employer, who has suffered the loss of a hand,	265
arm, foot, leg, or eye prior to the injury for which compensation	266
is to be paid, and thereafter suffers the loss of any other of the	267
members as the result of any injury sustained in the course of and	268
arising out of the employee's employment, the compensation to be	269
paid by the self-insuring employer is limited to the disability	270
suffered in the subsequent injury, additional compensation, if	271
any, to be paid by the bureau out of the surplus created by	272
section 4123.34 of the Revised Code.	273

(E) In addition to the requirements of this section, the	274
administrator shall make and publish rules governing the manner of	275
making application and the nature and extent of the proof required	276
to justify a finding of fact by the administrator as to granting	277
the status of a self-insuring employer, which rules shall be	278
general in their application, one of which rules shall provide	279
that all self-insuring employers shall pay into the state	280
insurance fund such amounts as are required to be credited to the	281
surplus fund in division (B) of section 4123.34 of the Revised	282
Code. The administrator may adopt rules establishing requirements	283
in addition to the requirements described in division (B)(2) of	284
this section that a public employer shall meet in order to qualify	285
for self-insuring status.	286

Employers shall secure directly from the bureau central	287
offices application forms upon which the bureau shall stamp a	288
designating number. Prior to submission of an application, an	289
employer shall make available to the bureau, and the bureau shall	290
review, the information described in division (B)(1) of this	291
section, and public employers shall make available, and the bureau	292
shall review, the information necessary to verify whether the	293
public employer meets the requirements listed in division (B)(2)	294
of this section. An employer shall file the completed application	295
forms with an application fee, which shall cover the costs of	296
processing the application, as established by the administrator,	297
by rule, with the bureau at least ninety days prior to the	298
effective date of the employer's new status as a self-insuring	299
employer. The application form is not deemed complete until all	300
the required information is attached thereto. The bureau shall	301
only accept applications that contain the required information.	302

(F) The bureau shall review completed applications within a	303
reasonable time. If the bureau determines to grant an employer the	304
status as a self-insuring employer, the bureau shall issue a	305
statement, containing its findings of fact, that is prepared by	306
the bureau and signed by the administrator. If the bureau	307
determines not to grant the status as a self-insuring employer,	308
the bureau shall notify the employer of the determination and	309
require the employer to continue to pay its full premium into the	310
state insurance fund. The administrator also shall adopt rules	311
establishing a minimum level of performance as a criterion for	312
granting and maintaining the status as a self-insuring employer	313
and fixing time limits beyond which failure of the self-insuring	314
employer to provide for the necessary medical examinations and	315
evaluations may not delay a decision on a claim.	316

(G) The administrator shall adopt rules setting forth	317
procedures for auditing the program of self-insuring employers.	318
The bureau shall conduct the audit upon a random basis or whenever	319
the bureau has grounds for believing that a self-insuring employer	320
is not in full compliance with bureau rules or this chapter.	321

The administrator shall monitor the programs conducted by	322
self-insuring employers, to ensure compliance with bureau	323
requirements and for that purpose, shall develop and issue to	324
self-insuring employers standardized forms for use by the	325
self-insuring employer in all aspects of the self-insuring	326
employers' direct compensation program and for reporting of	327
information to the bureau.	328

The bureau shall receive and transmit to the self-insuring	329
employer all complaints concerning any self-insuring employer. In	330
the case of a complaint against a self-insuring employer, the	331
administrator shall handle the complaint through the	332
self-insurance division of the bureau. The bureau shall maintain a	333
file by employer of all complaints received that relate to the	334
employer. The bureau shall evaluate each complaint and take	335
appropriate action.	336

The administrator shall adopt as a rule a prohibition against	337
any self-insuring employer from harassing, dismissing, or	338
otherwise disciplining any employee making a complaint, which rule	339
shall provide for a financial penalty to be levied by the	340
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 may	343
subscribe to and pay for a credit reporting service that offers	344
financial and other business information about individual	345
employers. The costs in connection with the bureau's subscription	346
or individual reports from the service about an applicant may be	347
included in the application fee charged employers under this	348
section.	349

(I) The administrator, notwithstanding other provisions of	350
this chapter, may permit a self-insuring employer to resume	351
payment of premiums to the state insurance fund with appropriate	352
credit modifications to the employer's basic premium rate as such	353
rate is determined pursuant to section 4123.29 of the Revised	354
Code.	355

(J) On the first day of July of each year, the administrator	356
shall calculate separately each self-insuring employer's	357
assessments for the safety and hygiene fund, administrative costs	358
pursuant to section 4123.342 of the Revised Code, and for the	359
portion of the surplus fund under division (B) of section 4123.34	360
of the Revised Code that is not used for handicapped	361
reimbursement, on the basis of the paid compensation attributable	362
to the individual self-insuring employer according to the	363
following calculation:	364

(1) The total assessment against all self-insuring employers	365
as a class for each fund and for the administrative costs for the	366
year that the assessment is being made, as determined by the	367
administrator, divided by the total amount of paid compensation	368
for the previous calendar year attributable to all amenable	369
self-insuring employers;	370

(2) Multiply the quotient in division (J)(1) of this section	371
by the total amount of paid compensation for the previous calendar	372
year that is attributable to the individual self-insuring employer	373
for whom the assessment is being determined. Each self-insuring	374
employer shall pay the assessment that results from this	375
calculation, unless the assessment resulting from this calculation	376
falls below a minimum assessment, which minimum assessment the	377
administrator shall determine on the first day of July of each	378
year with the advice and consent of the workers' compensation	379
oversight commission, in which event, the self-insuring employer	380
shall pay the minimum assessment.	381

In determining the total amount due for the total assessment	382
against all self-insuring employers as a class for each fund and	383
the administrative assessment, the administrator shall reduce	384
proportionately the total for each fund and assessment by the	385
amount of money in the self-insurance assessment fund as of the	386
date of the computation of the assessment.	387

The administrator shall calculate the assessment for the	388
portion of the surplus fund under division (B) of section 4123.34	389
of the Revised Code that is used for handicapped reimbursement in	390
the same manner as set forth in divisions (J)(1) and (2) of this	391
section except that the administrator shall calculate the total	392
assessment for this portion of the surplus fund only on the basis	393
of those self-insuring employers that retain participation in the	394
handicapped reimbursement program and the individual self-insuring	395
employer's proportion of paid compensation shall be calculated	396
only for those self-insuring employers who retain participation in	397
the handicapped reimbursement program. The administrator, as the	398
administrator determines appropriate, may determine the total	399
assessment for the handicapped portion of the surplus fund in	400
accordance with sound actuarial principles.	401

The administrator shall calculate the assessment for the	402
portion of the surplus fund under division (B) of section 4123.34	403
of the Revised Code that under division (D) of section 4121.66 of	404
the Revised Code is used for rehabilitation costs in the same	405
manner as set forth in divisions (J)(1) and (2) of this section,	406
except that the administrator shall calculate the total assessment	407
for this portion of the surplus fund only on the basis of those	408
self-insuring employers who have not made the election to make	409
payments directly under division (D) of section 4121.66 of the	410
Revised Code and an individual self-insuring employer's proportion	411
of paid compensation only for those self-insuring employers who	412
have not made that election.	413

An employer who no longer is a self-insuring employer in this	414
state or who no longer is operating in this state, shall continue	415
to pay assessments for administrative costs and for the portion of	416
the surplus fund under division (B) of section 4123.34 of the	417
Revised Code that is not used for handicapped reimbursement, based	418
upon paid compensation attributable to claims that occurred while	419
the employer was a self-insuring employer within this state.	420

(K) There is hereby created in the state treasury the	421
self-insurance assessment fund. All investment earnings of the	422
fund shall be deposited in the fund. The administrator shall use	423
the money in the self-insurance assessment fund only for	424
administrative costs as specified in section 4123.341 of the	425
Revised Code.	426

(L) Every self-insuring employer shall certify, in affidavit	427
form subject to the penalty for perjury, to the bureau the amount	428
of the self-insuring employer's paid compensation for the previous	429
calendar year. In reporting paid compensation paid for the	430
previous year, a self-insuring employer shall exclude from the	431
total amount of paid compensation any reimbursement the	432
self-insuring employer receives in the previous calendar year from	433
the surplus fund pursuant to section 4123.512 of the Revised Code	434
for any paid compensation. The self-insuring employer also shall	435
exclude from the paid compensation reported any amount recovered	436
under section 4123.931 of the Revised Code and any amount that is	437
determined not to have been payable to or on behalf of a claimant	438
in any final administrative or judicial proceeding. The	439
self-insuring employer shall exclude such amounts from the paid	440
compensation reported in the reporting period subsequent to the	441
date the determination is made. The administrator shall adopt	442
rules, in accordance with Chapter 119. of the Revised Code,	443
establishing the date by which self-insuring employers must submit	444
such information and the amount of the assessments provided for in	445
division (J) of this section for employers who have been granted	446
self-insuring status within the last calendar year.	447

The administrator shall include any assessment that remains	448
unpaid for previous assessment periods in the calculation and	449
collection of any assessments due under this division or division	450
(J) of this section.	451

(M) As used in this section, "paid compensation" means all	452
amounts paid by a self-insuring employer for living maintenance	453
benefits, all amounts for compensation paid pursuant to sections	454
4121.63, 4121.67, 4123.56, 4123.57, 4123.58, 4123.59, 4123.60, and	455
4123.64 of the Revised Code, all amounts paid as wages in lieu of	456
such compensation, all amounts paid in lieu of such compensation	457
under a nonoccupational accident and sickness program fully funded	458
by the self-insuring employer, and all amounts paid by a	459
self-insuring employer for a violation of a specific safety	460
standard pursuant to Section 35 of Article II, Ohio Constitution	461
and section 4121.47 of the Revised Code.	462

(N) Should any section of this chapter or Chapter 4121. of	463
the Revised Code providing for self-insuring employers'	464
assessments based upon compensation paid be declared	465
unconstitutional by a final decision of any court, then that	466
section of the Revised Code declared unconstitutional shall revert	467
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 the	470
privilege to self-insure a construction project entered into by	471
the self-insuring employer that is scheduled for completion within	472
six years after the date the project begins, and the total cost of	473
which is estimated to exceed one hundred million dollars or, for	474
employers described in division (R) of this section, if the	475
construction project is estimated to exceed twenty-five million	476
dollars. The administrator may waive such cost and time criteria	477
and grant a self-insuring employer the privilege to self-insure a	478
construction project regardless of the time needed to complete the	479
construction project and provided that the cost of the	480
construction project is estimated to exceed fifty million dollars.	481
A self-insuring employer who desires to self-insure a construction	482
project shall submit to the administrator an application listing	483
the dates the construction project is scheduled to begin and end,	484
the estimated cost of the construction project, the contractors	485
and subcontractors whose employees are to be self-insured by the	486
self-insuring employer, the provisions of a safety program that is	487
specifically designed for the construction project, and a	488
statement as to whether a collective bargaining agreement	489
governing the rights, duties, and obligations of each of the	490
parties to the agreement with respect to the construction project	491
exists between the self-insuring employer and a labor	492
organization.	493

A self-insuring employer may apply to self-insure the	494
employees of either of the following:	495

(1) All contractors and subcontractors who perform labor or	496
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 shall	501
mail a certificate granting the privilege to self-insure the	502
construction project to the self-insuring employer. The	503
certificate shall contain the name of the self-insuring employer	504
and the name, address, and telephone number of the self-insuring	505
employer's representatives who are responsible for administering	506
workers' compensation claims for the construction project. The	507
self-insuring employer shall post the certificate in a conspicuous	508
place at the site of the construction project.	509

The administrator shall maintain a record of the contractors	510
and subcontractors whose employees are covered under the	511
certificate issued to the self-insured employer. A self-insuring	512
employer immediately shall notify the administrator when any	513
contractor or subcontractor is added or eliminated from inclusion	514
under the certificate.	515

Upon approval of the application, the self-insuring employer	516
is responsible for the administration and payment of all claims	517
under this chapter and Chapter 4121. of the Revised Code for the	518
employees of the contractor and subcontractors covered under the	519
certificate who receive injuries or are killed in the course of	520
and arising out of employment on the construction project, or who	521
contract an occupational disease in the course of employment on	522
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 is	532
entitled to the protections provided under this chapter and	533
Chapter 4121. of the Revised Code with respect to the employees of	534
the contractors and subcontractors covered under a certificate	535
issued under this division for death or injuries that arise out	536
of, or death, injuries, or occupational diseases that arise in the	537
course of, those employees' employment on that construction	538
project, as if the employees were employees of the self-insuring	539
employer, provided that the self-insuring employer also complies	540
with this section. No employee of the contractors and	541
subcontractors covered under a certificate issued under this	542
division shall be considered the employee of the self-insuring	543
employer listed in that certificate for any purposes other than	544
this chapter and Chapter 4121. of the Revised Code. Nothing in	545
this division gives a self-insuring employer authority to control	546
the means, manner, or method of employment of the employees of the	547
contractors and subcontractors covered under a certificate issued	548
under this division.	549

The contractors and subcontractors included under a	550
certificate issued under this division are entitled to the	551
protections provided under this chapter and Chapter 4121. of the	552
Revised Code with respect to the contractor's or subcontractor's	553
employees who are employed on the construction project which is	554
the subject of the certificate, for death or injuries that arise	555
out of, or death, injuries, or occupational diseases that arise in	556
the course of, those employees' employment on that construction	557
project.	558

The contractors and subcontractors included under a	559
certificate issued under this division shall identify in their	560
payroll records the employees who are considered the employees of	561
the self-insuring employer listed in that certificate for purposes	562
of this chapter and Chapter 4121. of the Revised Code, and the	563
amount that those employees earned for employment on the	564
construction project that is the subject of that certificate.	565
Notwithstanding any provision to the contrary under this chapter	566
and Chapter 4121. of the Revised Code, the administrator shall	567
exclude the payroll that is reported for employees who are	568
considered the employees of the self-insuring employer listed in	569
that certificate, and that the employees earned for employment on	570
the construction project that is the subject of that certificate,	571
when determining those contractors' or subcontractors' premiums or	572
assessments required under this chapter and Chapter 4121. of the	573
Revised Code. A self-insuring employer issued a certificate under	574
this division shall include in the amount of paid compensation it	575
reports pursuant to division (L) of this section, the amount of	576
paid compensation the self-insuring employer paid pursuant to this	577
division for the previous calendar year.	578

Nothing in this division shall be construed as altering the	579
rights of employees under this chapter and Chapter 4121. of the	580
Revised Code as those rights existed prior to September 17, 1996.	581
Nothing in this division shall be construed as altering the rights	582
devolved under sections 2305.31 and 4123.82 of the Revised Code as	583
those rights existed prior to September 17, 1996.	584

As used in this division, "privilege to self-insure a	585
construction project" means privilege to pay individually	586
compensation, and to furnish medical, surgical, nursing, and	587
hospital services and attention and funeral expenses directly to	588
injured employees or the dependents of killed employees.	589

(P) A self-insuring employer whose application is granted	590
under division (O) of this section shall designate a safety	591
professional to be responsible for the administration and	592
enforcement of the safety program that is specifically designed	593
for the construction project that is the subject of the	594
application.	595

A self-insuring employer whose application is granted under	596
division (O) of this section shall employ an ombudsperson for the	597
construction project that is the subject of the application. The	598
ombudsperson shall have experience in workers' compensation or the	599
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 of	603
employment on the construction project, or who contract an	604
occupational disease in the course of employment on the	605
construction project;	606

(2) Investigate the status of a claim upon the request of an	607
employee to do so;	608

(3) Provide information to claimants, third party	609
administrators, employers, and other persons to assist those	610
persons in protecting their rights under this chapter and Chapter	611
4121. of the Revised Code.	612

A self-insuring employer whose application is granted under	613
division (O) of this section shall post the name of the safety	614
professional and the ombudsperson and instructions for contacting	615
the safety professional and the ombudsperson in a conspicuous	616
place at the site of the construction project.	617

(Q) The administrator may consider all of the following when	618
deciding whether to grant a self-insuring employer the privilege	619
to self-insure a construction project as provided under division	620
(O) of this section:	621

(1) Whether the self-insuring employer has an organizational	622
plan for the administration of the workers' compensation law;	623

(2) Whether the safety program that is specifically designed	624
for the construction project provides for the safety of employees	625
employed on the construction project, is applicable to all	626
contractors and subcontractors who perform labor or work or	627
provide materials for the construction project, and has as a	628
component, a safety training program that complies with standards	629
adopted pursuant to the "Occupational Safety and Health Act of	630
1970," 84 Stat. 1590, 29 U.S.C.A. 651, and provides for continuing	631
management and employee involvement;	632

(3) Whether granting the privilege to self-insure the	633
construction project will reduce the costs of the construction	634
project;	635

(4) Whether the self-insuring employer has employed an	636
ombudsperson as required under division (P) of this section;	637

(5) Whether the self-insuring employer has sufficient surety	638
to secure the payment of claims for which the self-insuring	639
employer would be responsible pursuant to the granting of the	640
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-insuring	643
employer" includes the following employers, whether or not they	644
have been granted the status of being a self-insuring employer	645
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 a	654
public employer may borrow without voter approval of a tax levy;	655

(2) "State institution of higher education" means the state	656
universities listed in section 3345.011 of the Revised Code,	657
community colleges created pursuant to Chapter 3354. of the	658
Revised Code, university branches created pursuant to Chapter	659
3355. of the Revised Code, technical colleges created pursuant to	660
Chapter 3357. of the Revised Code, and state community colleges	661
created pursuant to Chapter 3358. of the Revised Code.	662

Sec. 4123.54.  (A) Every employee, who is injured or who	663
contracts an occupational disease, and the dependents of each	664
employee who is killed, or dies as the result of an occupational	665
disease contracted in the course of employment, wherever such	666
injury has occurred or occupational disease has been contracted,	667
provided the same were not:	668

(1) Purposely self-inflicted; or

669

(2) Caused by the employee being intoxicated or under the	670
influence of a controlled substance not prescribed by a physician	671
where the intoxication or being under the influence of the	672
controlled substance not prescribed by a physician was the	673
proximate cause of the injury, is entitled to receive, either	674
directly from the employee's self-insuring employer as provided in	675
section 4123.35 of the Revised Code, or from the state insurance	676
fund, the compensation for loss sustained on account of the	677
injury, occupational disease, or death, and the medical, nurse,	678
and hospital services and medicines, and the amount of funeral	679
expenses in case of death, as are provided by this chapter.	680

(B) For the purpose of this section, provided that an	681
employee is given or has been givenemployer has posted written	682
notice to employees that the results of, or the employee's refusal	683
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 intoxicated	687
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 when	691
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 of	709
urine;	710

(c)(iii) For cocaine, including crack cocaine, three hundred	711
nanograms per milliliter of urine;	712

(d)(iv) For opiates, two thousand nanograms per milliliter of	713
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 of	725
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 of	729
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 by	736
laboratories certified by the United States department of health	737
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 is	804
possibility of conflict with respect to the application of	805
workers' compensation laws because the contract of employment is	806
entered into and all or some portion of the work is or is to be	807
performed in a state or states other than Ohio, the employer and	808
the employee may agree to be bound by the laws of this state or by	809
the laws of some other state in which all or some portion of the	810
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 remain	813
in force until terminated or modified by agreement of the parties	814
similarly filed. If the agreement is to be bound by the laws of	815
this state and the employer has complied with this chapter, then	816
the employee is entitled to compensation and benefits regardless	817
of where the injury occurs or the disease is contracted and the	818
rights of the employee and the employee's dependents under the	819
laws of this state are the exclusive remedy against the employer	820
on account of injury, disease, or death in the course of and	821
arising out of the employee's employment. If the agreement is to	822
be bound by the laws of another state and the employer has	823
complied with the laws of that state, the rights of the employee	824
and the employee's dependents under the laws of that state are the	825
exclusive remedy against the employer on account of injury,	826
disease, or death in the course of and arising out of the	827
employee's employment without regard to the place where the injury	828
was sustained or the disease contracted.	829

If any employee or the employee's dependents are awarded	830
workers' compensation benefits or recover damages from the	831
employer under the laws of another state, the amount awarded or	832
recovered, whether paid or to be paid in future installments,	833
shall be credited on the amount of any award of compensation or	834
benefits made to the employee or the employee's dependents by the	835
bureau.	836

If an employee is a resident of a state other than this state	837
and is insured under the workers' compensation law or similar laws	838
of a state other than this state, the employee and the employee's	839
dependents are not entitled to receive compensation or benefits	840
under this chapter, on account of injury, disease, or death	841
arising out of or in the course of employment while temporarily	842
within this state, and the rights of the employee and the	843
employee's dependents under the laws of the other state are the	844
exclusive remedy against the employer on account of the injury,	845
disease, or death.	846

(H) Compensation or benefits are not payable to a claimant	847
during the period of confinement of the claimant in any state or	848
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
657 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