Workers’ compensation laws are in place to provide medical costs and wage replacement for workers who sustain an injury on the job. They act as a buffer for employers by shielding them from lawsuits from injured employees. But what happens when an employee is injured while impaired?
It’s more common than you think. 1 in 13 U.S. adults has an alcohol disorder and 15.6% of employees have a substance abuse disorder. To top it off, drug-using employees are 5x more likely to file workers’ comp claims. This can cost businesses big on their premiums. Luckily, there’s a legal tool to deal with workplace injuries that occurred as the result of drug or alcohol use.
Rebuttable presumption is a tool that employers can use to shift the burden of proof onto an employee in the case of intoxication or drug impairment, resulting in on-the-job injuries. It can result in a denied workers’ compensation claim if it succeeds.
Rebuttable presumption isn’t easy to achieve in Ohio and many employers don’t have the appropriate rebuttable presumption strategies or tools at their disposal.
Understanding Rebuttable Presumption
When an employee is injured on the job in Ohio, an employer can take the appropriate steps to be entitled to rebuttable presumption if they believe that the injury occurred as a result of intoxication or drug impairment. If rebuttable presumption is applicable, the employee bears the burden of proof that intoxication was not the cause of their injury. Otherwise, the employer bears the same burden of proof.
In other words, rebuttable presumption allows employers to shift the burden of proof to the employee in the case of injury due to intoxication. This can be a precious tool for businesses looking to reduce the costs associated with claims and it can safeguard them from injuries that weren’t caused by daily workflows.
To qualify for rebuttable presumption, employers must take the appropriate steps before and after a worker is injured.
Steps to Take Before A Worker is Injured
Qualifying for rebuttable presumption requires some proactive measures on the employers’ part.
- Establish a robust drug-free policy and program in the workplace. If you have a TPA, you should work one-on-one with them to develop a comprehensive, legally-sound drug-free policy that protects your business. Within this program, you should outline the procedure that employees should take to document co-workers they believe to be under the influence of a substance. Having an affidavit from an employee can make or break a rebuttable presumption claim.
- The BWC recommends using their drug-free policy program as a design to create the necessary drug testing policies and procedures. A core component of establishing drug testing is to inform employees that failure to comply with testing policies can result in a denied workers’ compensation claim.
- You must post the BWC’s rebuttable presumption written notice in a highly visible common area. Typically, we see these posted in the break room or common room along with other essential workplace notices.
- Educate and inform employees about the intent of the notice and how rebuttable presumption could impact their workers’ compensation claims.
Steps to Take After A Worker is Injured
After an employee is injured on-the-job, and you believe it’s due to intoxication, you need to act fast. The first few hours after the incident are crucial towards rebuttable presumption claims.
Depending upon the substance you believe to be responsible for the incident, you need to submit a drug test within a specific timeframe. Remember, your drug policy should be legally sound and up-to-date, and you should have testing facilities at your disposal. If an employee tests positive, you may be eligible for the rebuttable presumption that intoxication or drug impairment was the cause of the workplace accident, not the workplace.
- You must test for alcohol within 8 hours.
- You need to test for marijuana, barbiturates, or any other drug within 32 hours.
Testing isn’t enough. You will also need to document reasonable cause for the drug test. Without reasonable cause, the BWC will deny your rebuttable presumption claim.
How a TPA Can Help You Prepare for Rebuttable Presumption Cases
Preparing for rebuttable presumption cases isn’t easy. You have to establish the appropriate drug-free protocols, ensure that your legal paperwork is sound, and gather the appropriate evidence to present to the BWC.
TPA’s — like Sheakley — can help you establish the appropriate workflows and documentation necessary to facilitate rebuttable presumption claims. Remember, your TPA plays a vital role in your workers’ compensation processes and strategies, and they will be able to assist in creating a comprehensive solution that includes drug-free workplace initiatives.
Rebuttable Presumption Q&A
What role does medical marijuana play in rebuttable presumption in Ohio?
- The introduction of medical marijuana into Ohio’s workforce has certainly caused some disruptions for drug policies. Many Ohio businesses have reduced or eliminated their drug testing policies to accommodate the increasing number of employees who use medicinal marijuana, but that doesn’t mean that marijuana doesn’t qualify for rebuttable presumption.
- In fact, not only is marijuana usage still considered workplace drug impairment, but employers can still drug test medical marijuana patients and subject them to the same drug-free policies as everyone else.
- The BWC has made it clear that marijuana is not an approved medication in regards to drug policies or workers compensation claims. Marijuana is still a federally-classified drug. This means that it’s not approved by the Food and Drug Administration and is not subject to the same approval as prescription medication.
How do you document reasonable cause for a drug test?
- By far, the trickiest part of rebuttable presumption is documenting reasonable cause for a drug test. After all, a supervisor claiming that a worker seemed to be intoxicated during an injury leads to some complications. Namely, why was the worker still working if they were suspected of being on a controlled substance?
- Almost all rebuttable presumption cases rely on third-party witnesses. Typically, this a coworker who noticed that the employee was acting strangely or behaving erratically. These eyewitness affidavits are central to your rebuttable presumption case. Without them, you may not have reasonable cause to drug test an employee.
- TPA’s can help you gather this evidence and can assist you in creating the drug-free initiatives that provide the necessary resources and tools to help your employees document co-worker drug or alcohol abuse in the workplace.
Safeguarding Against Workplace Drug or Alcohol Injuries
Are you ready to combat fraudulent workers compensation claims and injuries due to alcohol or drugs? We can help you establish the drug-free initiatives that will make your workplace safer and more productive.
At Sheakley, we give you the workers’ compensation help you need so that you can focus on what really matters, protecting your employees and growing your business. Grow Smarter. Grow Faster. Grow Safe. Grow With Sheakley.