130th Ohio General Assembly
The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.

H. B. No. 223As Introduced
As Introduced

125th General Assembly
Regular Session
2003-2004
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



A BILL
To amend section 4123.54 of the Revised Code to specify conditions under which chemical testing of an employee may establish a rebuttable presumption that the employee's injury was proximately caused by use of alcohol or an unprescribed controlled substance.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 4123.54 of the Revised Code be amended to read as follows:
Sec. 4123.54.  (A) Every employee, who is injured or who contracts an occupational disease, and the dependents of each employee who is killed, or dies as the result of an occupational disease contracted in the course of employment, wherever such injury has occurred or occupational disease has been contracted, provided the same were not:
(1) Purposely self-inflicted; or
(2) Caused by the employee being intoxicated or under the influence of a controlled substance not prescribed by a physician where the intoxication or being under the influence of the controlled substance not prescribed by a physician was the proximate cause of the injury, is entitled to receive, either directly from the employee's self-insuring employer as provided in section 4123.35 of the Revised Code, or from the state insurance fund, the compensation for loss sustained on account of the injury, occupational disease, or death, and the medical, nurse, and hospital services and medicines, and the amount of funeral expenses in case of death, as are provided by this chapter.
(B) For the purpose of this section, provided that an employee is given or has been given notice that the results of, or the employee's refusal to submit to, any chemical test described under this division may affect the employee's eligibility for compensation and benefits pursuant to this chapter and Chapter 4121. of the Revised Code, there is a rebuttable presumption that an employee is intoxicated or under the influence of a controlled substance not prescribed by a the employee's physician and that being intoxicated or under the influence of a controlled substance not prescribed by a the employee's physician is the proximate cause of an injury when under either of the following conditions:
(1) When any one or more of the following is true:
(1)(a) The employee, through a qualifying chemical test administered within eight hours of an injury, is determined to have an alcohol concentration level equal to or in excess of the levels established in divisions (A)(2) to (7) of section 4511.19 of the Revised Code;
(2)(b) The employee, through a qualifying chemical test administered within thirty-two hours of an injury, is determined to have one of the following controlled substances not prescribed by the employee's physician in the employee's system that tests above the following levels in an enzyme multiplied immunoassay technique screening test and above the levels established in division (B)(3) of this section in a gas chromatography mass spectrometry test:
(a)(i) For amphetamines, one thousand nanograms per milliliter of urine;
(b)(ii) For cannabinoids, fifty nanograms per milliliter of urine;
(c)(iii) For cocaine, including crack cocaine, three hundred nanograms per milliliter of urine;
(d)(iv) For opiates, two thousand nanograms per milliliter of urine;
(e)(v) For phencyclidine, twenty-five nanograms per milliliter of urine.
(3)(c) The employee, through a qualifying chemical test administered within thirty-two hours of an injury, is determined to have one of the following controlled substances not prescribed by the employee's physician in the employee's system that tests above the following levels by a gas chromatography mass spectrometry test:
(a)(i) For amphetamines, five hundred nanograms per milliliter of urine;
(b)(ii) For cannabinoids, fifteen nanograms per milliliter of urine;
(c)(iii) For cocaine, including crack cocaine, one hundred fifty nanograms per milliliter of urine;
(d)(iv) For opiates, two thousand nanograms per milliliter of urine;
(e)(v) For phencyclidine, twenty-five nanograms per milliliter of urine.
(4)(d) The employee, through a qualifying chemical test administered within thirty-two hours of an injury, is determined to have barbiturates, benzodiazepines, methadone, or propoxyphene in the employee's system that tests above levels established by laboratories certified by the United States department of health and human services.
(5) The (2) When the employee refuses to submit to a requested chemical test, on the condition that that employee is or was given notice that the refusal to submit to any chemical test described in division (B)(1) may affect the employee's eligibility for compensation and benefits under this chapter and Chapter 4121. of the Revised Code.
(C)(1) For purposes of division (B) of this section, a chemical test is a qualifying chemical test if it is administered to an employee after an injury under at least one of the following conditions:
(a) When the employee's employer had reasonable cause to suspect that the employee may be intoxicated or under the influence of a controlled substance not prescribed by the employee's physician;
(b) At the request of a police officer pursuant to section 4511.191 of the Revised Code, and not at the request of the employee's employer;
(c) At the request of a licensed physician who is not employed by the employee's employer, and not at the request of the employee's employer.
(2) As used in division (C)(1)(a) of this section, "reasonable cause" means, but is not limited to, evidence that an employee is or was using alcohol or a controlled substance drawn from specific, objective facts and reasonable inferences drawn from these facts in light of experience and training. These facts and inferences may be based on, but are not limited to, any of the following:
(a) Observable phenomena, such as direct observation of use, possession, or distribution of alcohol or a controlled substance, or of the physical symptoms of being under the influence of alcohol or a controlled substance, such as but not limited to slurred speech, dilated pupils, odor of alcohol or a controlled substance, changes in affect, or dynamic mood swings;
(b) A pattern of abnormal conduct, erratic or aberrant behavior, or deteriorating work performance such as frequent absenteeism, excessive tardiness, or recurrent accidents, that appears to be related to the use of alcohol or a controlled substance, and does not appear to be attributable to other factors;
(c) The identification of an employee as the focus of a criminal investigation into unauthorized possession, use, or trafficking of a controlled substance;
(d) A report of use of alcohol or a controlled substance provided by a reliable and credible source;
(e) Repeated or flagrant violations of the safety or work rules of the employee's employer, that are determined by the employee's supervisor to pose a substantial risk of physical injury or property damage and that appear to be related to the use of alcohol or a controlled substance and that do not appear attributable to other factors.
(D) Nothing in this section shall be construed to affect the rights of an employer to test employees for alcohol or controlled substance abuse.
Whenever, with respect to an employee of an employer who is subject to and has complied with this chapter, there is possibility of conflict with respect to the application of workers' compensation laws because the contract of employment is entered into and all or some portion of the work is or is to be performed in a state or states other than Ohio, the employer and the employee may agree to be bound by the laws of this state or by the laws of some other state in which all or some portion of the work of the employee is to be performed. The agreement shall be in writing and shall be filed with the bureau of workers' compensation within ten days after it is executed and shall remain in force until terminated or modified by agreement of the parties similarly filed. If the agreement is to be bound by the laws of this state and the employer has complied with this chapter, then the employee is entitled to compensation and benefits regardless of where the injury occurs or the disease is contracted and the rights of the employee and the employee's dependents under the laws of this state are the exclusive remedy against the employer on account of injury, disease, or death in the course of and arising out of the employee's employment. If the agreement is to be bound by the laws of another state and the employer has complied with the laws of that state, the rights of the employee and the employee's dependents under the laws of that state are the exclusive remedy against the employer on account of injury, disease, or death in the course of and arising out of the employee's employment without regard to the place where the injury was sustained or the disease contracted.
If any employee or the employee's dependents are awarded workers' compensation benefits or recover damages from the employer under the laws of another state, the amount awarded or recovered, whether paid or to be paid in future installments, shall be credited on the amount of any award of compensation or benefits made to the employee or the employee's dependents by the bureau.
If an employee is a resident of a state other than this state and is insured under the workers' compensation law or similar laws of a state other than this state, the employee and the employee's dependents are not entitled to receive compensation or benefits under this chapter, on account of injury, disease, or death arising out of or in the course of employment while temporarily within this state, and the rights of the employee and the employee's dependents under the laws of the other state are the exclusive remedy against the employer on account of the injury, disease, or death.
Compensation or benefits are not payable to a claimant during the period of confinement of the claimant in any state or federal correctional institution whether in this or any other state for conviction of violation of any state or federal criminal law.
Section 2. That existing section 4123.54 of the Revised Code is hereby repealed.
Please send questions and comments to the Webmaster.
© 2022 Legislative Information Systems | Disclaimer