Anybody hurt on the job in Ohio should receive workers’ compensation benefits, regardless of how the accident occurred and who was at fault. But there are exceptions to this rule, including instances where the injured employee was under the influence of drugs or alcohol at the time of the accident.
Failing a drug test—even for legal marijuana—following a workplace injury could be grounds for a denied workers’ compensation claim. While the denial is not automatic, you may need to hire a workers’ comp attorney to secure benefits.
When a Worker Can Be Disqualified From Receiving Benefits
For an injury to qualify for workers’ compensation coverage, it must have occurred “in the course of employment.” According to BWC, course of employment refers to the “time, place, and activities” in which the employee was involved at the time an injury occurred.
BWC uses two primary tests for course of employment:
- The zone of employment, or whether the injuries occurred on or off the employment premises; and
- The scope of employment, or whether the work is directly related to employment and in furtherance of the employer’s interests.
Exceptions to the scope of employment test include fights, horseplay, and being intoxicated by alcohol or under the influence of marijuana or a controlled substance (e.g., cocaine, opiates, barbiturates, or amphetamines) not prescribed by a doctor.
However, Ohio law is very specific concerning workplace drug/alcohol use and on-the-job injuries. Unless the worker’s impairment caused their injury at work, they can receive benefits.
The “Rebuttable Presumption” Rule
A workers’ compensation claim might be denied if an injured worker was intoxicated or under the influence at the time they were injured, and this is determined to be the cause of their injuries.
But where does the burden of proof lie—with the employee or employer? It can depend on a concept in Ohio workers’ comp law known as “rebuttable presumption.”
Ohio employers may receive a discount on their workers’ compensation insurance for implementing a drug-free safety program. Part of this program involves posting a written notice of rebuttable presumption.
- This notice, which is typically posted in a common area, like the break room or near a time clock, states that the burden of proof is on the employee to prove that the use of alcohol, marijuana, or a controlled substance was not the cause of the work-related injury.
In addition to the written notice requirement, rebuttable presumption criteria includes:
- An alcohol test obtained within 8 hours of the time of injury showing the employee was legally intoxicated; or
- A drug test obtained within 32 hours of the time of injury showing the employee was under the influence of marijuana or a controlled substance.
The presumption also arises if an employee refuses to submit to drug/alcohol testing when there has been notice that such refusal could result in the denial of benefits.
Finally, the employer must generally have “reasonable cause” for conducting the testing. They can show reasonable cause in several ways, such as witnessing actual drug use, obtaining a report of use from a credible witness, or observing physical symptoms of being under the influence.
Shifting the Burden of Proof
In the absence of these notice, testing, and reasonable cause elements, the employer is not entitled to a rebuttable presumption, and the burden of proof shifts from the employee to the employer to show that the injury occurred because the worker was impaired.
This does not ensure that the issue of drug or alcohol use is off the table in a worker’s comp claim, but without a rebuttable presumption, the employer will have to prove that the injury occurred due to the worker being intoxicated or under the influence, which could increase the likelihood that the employee will qualify for benefits.
Legal Marijuana and Workplace Injuries
In November 2023, Ohio legalized adult recreational use of marijuana. However, the passage of Issue 2 does not give Ohio employees permission to go to work under the influence of marijuana.
The ballot’s language is clear on this issue, stating that an employer is not required to “accommodate an employee’s use, possession, or distribution of adult use cannabis.” Nor does the law prohibit an employer from “taking an adverse employment action against an individual” because of their cannabis use.
Even though recreational marijuana is now legal in Ohio, employers can still drug test employees, who may then be subject to a workplace drug policy that excludes them from workers’ comp coverage.
Marijuana Use vs. Marijuana Impairment
The issue of whether marijuana use is the cause of a workplace accident remains open to debate. THC, the psychoactive component of cannabis that causes the high, can remain in the body for up to 30 days. A post-accident drug test could show a positive result for marijuana, but the worker may not be under the influence of the drug, and therefore could receive workers’ comp benefits.
An Ohio Appeals Court ruled that, even though the injured worker had marijuana in his system, the drug was not the cause of his injury, and he was awarded workers’ compensation benefits.
This scenario played out in the Ohio court system after a worker was injured when a piece of steel fell on his legs. He tested positive for marijuana, which his employer claimed violated a prohibited drug rule, thereby making his injury “not in the scope and course of his employment at the time he was injured.”
The worker, who testified that he last smoked marijuana weeks before the accident, was awarded benefits, with an Ohio Appeals Court ruling that this drug was not the “proximate cause of his injury,” despite the fact that having marijuana in his system violated a workplace rule.
Failed Drug Test? Denied Benefits? Talk to a Workers’ Comp Lawyer.
Your employer might claim that you are not eligible for workers’ compensation due to a failed drug test. But you do not have to accept this as the final word in the matter. Evidence of drug use is not sufficient to deny an injured worker’s claim. The bigger issue is their impairment at the time of the accident.
There are defenses that can be raised when a failed drug test leads to denied benefits. For help understanding your rights, including the right to file an appeal, contact workers’ compensation attorney David Graham.
