Top 5 Things to Know When Drug Testing in Ohio

Note: This article is provided for educational purposes only and should not be relied upon as legal advice. The reader retains full responsibility to ensure compliance with all applicable laws relative to drug testing 

There’s nowhere quite as American as the Midwest, and right in the heart of it is Ohio. Known for the rock and roll hall of fame, Amish country, and football, Ohio is a place full of tradition and excellence. Ohio is also one of the states hit hardest by the opioid crisis, leaving families, businesses, and the economy damaged. As an employer in the Buckeye State, it’s crucial to be aware of your rights and responsibilities when it comes to a drug-free workplace. Below are 5 things you need to know to keep your employees and business on the right track. 

1. Drug Testing Law Type: Voluntary. Nothing in the law prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy. For companies that wish to qualify for a discount on their workers’ compensation premiums they must comply with this law; other companies are not mandated to comply with this statute.  
2.  Workers’/Unemployment Compensation Denial: There is a workers’ compensation law in Ohio that contains its own drug testing requirements. Employers are not required to comply, unless they wish to deny workers’ compensation claims. An employer must post written notice to employees that the results of, or refusal to submit to, a chemical test may affect the employee’s eligibility for compensation. Benefits are denied if injury is caused by the employee being intoxicated where the intoxication was the proximate cause of the injury. (Ohio Rev. Code Ann. 4123.54(A), (B)).
3. Marijuana Laws: Nothing in the law requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana. Smoking or combustion of marijuana is prohibited. Nothing is stated about recreational marijuana use.
4. A Major Case Law Decision: Lunsford v. Sterilite of Ohio: In the fall of 2016, four Sterilite employees were referred to a drug testing facility, U.S. Healthworks, for various reasons. When they arrived, they were informed that they would need to produce a valid urine sample using the direct observation method. While two employees produced valid samples, the other two did not. Sterilite terminated the two employees as a result. All four employees sued afterward citing Ohio’s law recognizing an individual’s right to privacy and to freedom from unreasonable invasion of privacy, and that “the intrusion of the direct observation method outweighed the employer’s interests in drug testing.” The Ohio Supreme Court disagreed, holding that “[w]hen an at-will employee consents, without objection, to the collection of the employee’s urine sample under the direct observation method, the at-will employee has no cause of action for common-law invasion of privacy”. A second court also suggested that employees cannot make an invasion of privacy claim after they’ve already signed the U.S. Workers’ consent form and consented to the testing. 
5. How to Test: Must use the federal model, a SAMHSA-certified lab. 

1. Ohio Rev. Code Ann. 3796.28 
2. Ohio Rev. Code Ann. 4123.54(A), (B) 
3. Ohio Rev. Code Ann. 3796.28 
4. No. 2020-Ohio-4193 (August 26, 2020), https://www.jdsupra.com/legalnews/ohio-supreme-court-holds-that-direct-48388/#_ftnref1 
5. Drug-free Workplace Program Technical Assistance Manual p. 27