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H. B. No. 223As Introduced
As Introduced
125th General Assembly | Regular Session | 2003-2004 |
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REPRESENTATIVES Gibbs, Cates, Schmidt, C. Evans, Calvert, Hagan, Aslanides, D. Evans, Buehrer, Setzer, Webster, McGregor, Raussen, Young, Faber, Peterson, Carmichael, Wolpert, Schlichter
A BILLTo 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.
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