Ohio Tightens “Intoxication Statute,” Giving Employers a Stronger Defense Against Workers’ Compensation Claims

Misconduct of an employee, whether negligent or willful, is immaterial in applying the law of workers’ compensation, unless it occurs outside the course of employment or implicates a statutory defense. This proposition is implicit in the basic test of coverage _— whether there is the requisite connection between the injury and the employment irrespective of the parties’ conduct. The test of whether an employee has a right to receive an award under the workers’ compensation law for an injury sustained in the course of employment is not whether there was any fault or neglect on the part of the employer, or the injured employee, but instead whether there is sufficient causal connection between the employment and the injury, based on employment-related activities, conditions, or environment.

After entering the course of employment, an employee can deviate from the employment by engaging in personal activity. Such deviations from the course of employment constitute an impermissible overstepping of the boundaries of the work, rather than a method of accomplishing that work.

Intoxication is one such exclusionary deviation or departure from the course of employment. In 2001, the General Assembly amended R.C. Section 4123.54 (B) to make an employee’s intoxication a possible basis for denying a workers’ compensation claim. House Bill 223 created a new “rebuttable presumption law” under the statute, which became effective October 13, 2004. It provided that an employer is entitled to the benefit of a rebuttable presumption that intoxication was the “proximate cause of the injury” when a qualifying test has been satisfied. A test meets the statutory qualification only if it was administered:

• when the employer had a reasonable cause to suspect that the employee might be intoxicated or under the influence;
• at the request of a police officer pursuant to a traffic stop; or
• 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.

An employer has a reasonable cause for suspicion when the employer has evidence that an employee was using drugs or alcohol, based on specific objective facts and reasonable inferences drawn from those facts in light of experience and training. Relevant factors include:

• observable phenomena (such as slurred speech, dilated pupils, odor of alcohol),
• a pattern of abnormal conduct (such as erratic behavior, deteriorating work performance, frequent absenteeism),
• identification of an employee as the focus of a criminal investigation concerning unauthorized possession or use of or trafficking in a controlled substance,
• a report that an employee was using alcohol or a controlled substance by a reliable and credible source, and
• repeated or flagrant violations of safety or work rules.

The foregoing must be documented and testimony from the employer will be necessary.

The statute also requires employers to post a written notice to employees that the result of, or the employee’s refusal to submit to, a chemical test may affect their eligibility for compensation. This statement is provided with an employer’s workers’ compensation certificate issued by the Bureau of Workers’ Compensation and should be posted in clear view to any employee at any time. Typically, this notice is posted with other employment notices in the break room or near a time clock.

Senate Bill 33 (effective July 21, 2025 and September 26, 2025) has recently tightened the rules around intoxication-related injuries. The amendments to R.C. 4123.54 (B)(1(b) include federal cut-off levels for qualifying chemical tests that trigger the rebuttable presumption, offering much needed clear guidelines for employers. Senate Bill 33 also amended the statute to allow employers to display the notice regarding the rebuttable presumption electronically, which can streamline compliance, especially for workplaces with remote or hybrid employees. However, employers should also continue to display the notice in the workplace as well.

It should be noted that an employee can attempt to establish that despite a positive test, the injury was caused by other factors and would have occurred regardless of the employee’s condition through eyewitness testimony to attest to the employee’s unimpaired conduct at the time of injury, evidence of unrelated cause such as negligence of co-worker, equipment malfunction, pre-existing hazardous conditions at the workplace, and accident analysis to show that the accident was due to a workplace hazard versus impaired judgment. An employee can also challenge whether the employer met the strict requirements to trigger the rebuttable presumption, such as improper notice of the drug testing policy and the impact on workers’ compensation, untimely substance testing, invalid test procedures, and failure to show reasonable cause.

Even though the amendments to RC 4123.54 provide employers with a clearer and more robust legal basis to deny a workers’ compensation claim if an employee is found to be intoxicated or under the influence of non-prescribed controlled substances at the time of the injury, an employer should have policies in place both before and after an injury occurs.

Prior to an injury occurring, an employer:

• must have the statutory written notice posted in the workplace that informs employees of the consequences of failure to submit to testing and/or the test results and the potential impact on a workers’ compensation claim.
• should memorialize its drug testing policy in writing, which should be included in new employee training and have new employees sign off and acknowledge their receipt and understanding of the policy. The policy should also include information on how to document symptoms of intoxication to other employees and managers.
• should determine where employees will be drug tested and keep it consistent.

After an injury occurs, the injured employee should be tested within the parameters of the statute (e.g., for controlled substances not prescribed by the employee’s physician, within 32 hours; for alcohol, within 8 hours). Employers should also document why the employee is being tested, including reasonable cause, such as observable phenomena, pattern of abnormal conduct, etc.

In short, a positive qualifying test in addition to well documented reasoning for testing is sound evidence to defeat a workers’ compensation claim due to a lack of compensability. However, if the employer has not posted the requisite notice, tested within the requisite time, or documented reasonable cause for the test, the rebuttable presumption may not be available to the employer.

If you have questions about Ohio’s updated intoxication statute or other workers’ compensation issues, contact Maris J. McNamara or another member of the Frantz Ward Labor and Employment Group.