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Supreme Court Strikes Workers' Comp. Drug-Testing Statute

2001-0642. State ex rel. Ohio AFL-CIO v. Ohio Bur. of Workers' Comp., 2002-Ohio-6717.
In Mandamus. Writ granted.
Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.
Moyer, C.J., and Lundberg Stratton, JJ., dissent.
Cook, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/newpdf/0/2002/2002-Ohio-6717.pdf

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(Dec. 18, 2002) Voting 4-3, the Supreme Court declared unconstitutional a portion of Ohio's workers' compensation law that permitted testing injured workers for drug and alcohol use.

Justice Paul E. Pfeifer wrote the court's opinion. Chief Justice Thomas J. Moyer, and Justices Deborah L. Cook and Evelyn Lundberg Stratton dissented.

Legislative amendments that became effective in April 2001 made it possible for employers to deny workers' compensation benefits to any employee whose injury was caused his intoxication or use of a controlled substance. An employee's refusal to be tested would act as a presumption that he was intoxicated or under the influence at the time of his injury.

The court's decision grants a request by Ohio labor unions that the state Bureau of Workers' Compensation and Industrial Commission be prohibited from enforcing the amendments. The unions request came in the form of a complaint for a writ of mandamus made directly to the Supreme Court. Such writs are considered extraordinary legal remedies.

The majority opinion rejects state claims that the Ohio AFL-CIO and United Auto Workers did not have standing, or the legal right, to file the case. The state asserted that the unions could demonstrate only potential harm to their members, not the direct and concrete injury necessary to confer standing on a party.

Justice Pfeifer, citing the Supreme Court's 1994 opinion in Ohio AFL-CIO v. Voinovich, wrote that the court previously had ruled on the constitutionality of the workers' compensation system in an action that sought a writ of mandamus.

Justice Pfeifer also cited the court's 1999 opinion in State ex rel. Ohio Academy of Trial Lawyers v. Sheward as authority for the unions' request. In that case, a lawyers' group sought to stop trial judges from enforcing tort reform legislation by filing for extraordinary writs. The Supreme Court held, by the same 4-3 margin as today, that if the goal of the request "is to procure the enforcement or protection of a public right, the [asking party] need not show any legal or special individual interest in the result, it being sufficient that the [asking party] is an Ohio citizen and, as such, interested in the execution of the laws of this state."

The majority then determined that drug testing performed by private employees would constitute a state action subject to constitutional prohibitions against unreasonable search and seizure.

"Without this legislation, an employer could not withhold an employee's workers' compensation for failure to take a drug test. The rebuttable presumption created by the state is the hammer that forces an employee to take an employer-directed drug test. It is a complete entanglement of private and state action," Justice Pfeifer explained.

The court also found that any special need asserted by the state for the testing was outweighed by the Ohioans' expectation of privacy.

"In Ohio, workers have an additional expectation of privacy when it comes to workers' compensation. The workers' compensation system is designed to avoid the adversarial character of the civil justice system, allowing workers to recover for injuries they suffer on the job without having to undertake the risk and expense of a civil trial. In return, employers are protected from large civil damage awards."

"Under such a system of compromise for mutual benefit, a worker would not expect to face the indignity of drug and alcohol testing without any suspicion of wrongdoing. Workers would not anticipate that their sobriety would be called into question merely for suffering an industrial accident. They would expect that since Ohio's workers' compensation system is a creature of the Ohio Constitution, they would not have to jump through an embarrassing hoop to gain the protection of the system."

In a dissenting opinion, Chief Justice Moyer wrote that the majority opinion breaks a promise the court made with its Sheward decision. "The majority expressly assured that it would 'entertain a public action only in the rare and extraordinary case where the challenged statute operates directly and broadly, to divest the courts of judicial power…We now know that this express promises of judicial restraint made by the majority in Sheward was a hollow one."

"It is true that the workers' compensation system in Ohio is of great importance to thousands of Ohio workers and employers. This does not mean that every time the General Assembly revises some aspect of workers' compensation law, an action challenging its constitutionality is a 'public action' involving a 'public right."

"If so, then virtually any legislative enactment affecting the public can be short-circuited to this court for immediate constitutional review," Chief Justice Moyer wrote.

"The [unions] do not allege facts supporting an exercise of this court's original jurisdiction to issue an extraordinary write of mandamus. This case should therefore be dismissed."

Even if the issue were properly before the court, the chief justice wrote, the majority's constitutional analysis was flawed.

Justice Deborah L. Cook joined the chief justice's dissent; Justice Evelyn Lundberg Stratton concurred.

Stewart R. and Marc J. Jaffy, 614.228.6148, for the labor unions.

Betty D. Montgomery, Elise W. Porter and Cheryl J. Nester, 614.466.2872, for the workers' compensation bureau.