Pubdate: Thu, 16 Nov 2000
Source: Plain Dealer, The (OH)
Copyright: 2000 The Plain Dealer
Contact:  1801 Superior Ave., Cleveland, OH 44114
Website: http://www.cleveland.com/news/
Forum: http://forums.cleveland.com/index.html
Author: Julie Carr Smyth

DRUG TEST BURDEN COULD SHIFT TO EMPLOYEES INJURED ON JOB

COLUMBUS - If you are injured on the job and test positive for drugs 
or alcohol, the state will assume you are responsible for the 
accident and can deny you compensation under a bill awaiting passage.

And refusal to submit to a timely analysis of blood, breath or urine 
would mean you are automatically assumed to have been using alcohol 
or drugs.

The bill adopts the same standard for on-the-job intoxication as 
applies to driving a car: Blood alcohol content cannot exceed .10 of 
1 percent.

The provision, expected to pass the Senate yesterday, was temporarily 
stalled by Democrats who cried constitutional foul. They called it 
the "guilty-until-proven-innocent" bill and demanded an amendment 
requiring employers to inform employees of the new ground rules.

Senate leaders, mindful of the bills potential constitutional 
problems, huddled with lawyers late yesterday and said they hope to 
bring the bill before the Senate for a vote today. It has already 
passed the House.

Sen. Dan Brady, a Cleveland Democrat, led opposition to the bill and 
offered the employee-notification amendment, which was defeated.

If the bill does pass, it would make it more difficult for some 
injured workers to collect workers compensation benefits.

Under current law, a worker proven to be on drugs or alcohol at the 
time of an on-the-job accident can lose his or her compensation. It 
is up to the employer, however, to prove the drugs or alcohol caused 
the accident. Under House Bill 122, employees would have to prove 
drugs and alcohol were not a cause.

"The courts are going to look at this and say, We cannot believe you 
would not provide some kind of notice requirement to the employee 
..." said Sen. Leigh Herington, a Ravenna Democrat and lawyer.

Scott Nein, a Middletown Republican, opposed requiring in writing 
that businesses inform workers of the changes to the law. He proposed 
instead that lawmakers work informally with business associations to 
ensure workers are told.

Nein said the bill would enhance workplace safety and protect 
businesses - particularly smaller ones - from undue liability in 
cases where workers are at fault. He said most big employers in the 
state are able to limit their liability through contracts with unions.

Sen. Ben Espy, a Columbus Democrat, said if there is even a 
possibility that the drug test results or test refusal could be used 
as evidence against a worker in criminal court, the worker should 
know.

"Any one of you who may have had a drink or two on the job may want 
to know your rights," he quipped. "That is just constitutional."

ACLU-Ohio legal director Raymond Vazvari said the provision that 
shifts the burden to the employee is "based on prejudices, biases and 
prior conceptions that may not be relevant."

"Drugs can stay in your system for a very long time, and alcohol 
consumption is a legal right in this country," Vazvari said. "They 
are placing an unjustified burden on the employee to prove his own 
innocence."

Civil libertarians have long been outspoken in opposing mandatory 
drug testing, in part because the noticeable effects of some 
substances are long past before they exit the bloodstream. THC, the 
byproduct of marijuana, can stay in the blood for four to six weeks 
after usage, for example.

Also, poppy seeds and certain over-the-counter medications can lead 
to false-positive results. Brady argued in committee that few 
guidelines were provided in the bill to ensure tests were conducted 
properly.
- ---
MAP posted-by: Kirk Bauer