Thursday, December 19, 2002

Drug-test law is unconstitutional, court rules

By Andrew Welsh-Huggins
The Associated Press

COLUMBUS - The Ohio Supreme Court ruled Wednesday that a law requiring injured workers to prove they weren't drunk or high on drugs by submitting to testing violates protections against unreasonable searches.

The court ruled 4-3 that the law, which had shifted the burden of proof from employers to workers, was unconstitutional.

The law, approved by the GOP-controlled Legislature, would have made refusal to take a test the equivalent of a positive test for drugs or alcohol.

That presumption could then have been used as evidence to deny a workers' compensation claim.

The ruling was a victory for unions, which had sued the state immediately after the law was enacted in April 2001, and a setback for business groups, which pushed the measure.

Writing for the majority, Justice Paul Pfeifer said the law did not fit within what the U.S. Supreme Court has found to be a "closely guarded" category of constitutionally permissible searches without warrants.

Those include schools' ability to require urinalysis tests of student-athletes and U.S. Customs Service tests of employees who might be involved in fighting drug smuggling or who must carry a weapon.

The fact that refusing a test is legally equivalent to a positive test means injured workers are subject to a government-imposed punishment for failing to submit to the testing, Justice Pfeifer said.

"Ordinary people working ordinary jobs do not have the expectation that they are subject to searches without reason," he wrote.

Justices Andy Douglas, Alice Robie Resnick and Francis Sweeney voted with Justice Pfeifer. The same majority has overturned a law that would have limited damage awards in lawsuits.

Writing for the minority, Chief Justice Thomas Moyer said both that the law was constitutional and the court did not have the jurisdiction to rule.

Nothing in the law "authorizes anyone, and specifically Ohio employers, to require employees to submit to drug testing: the word `employer' appears nowhere" in the law, Justice Moyer wrote.

"Any worker may refuse drug testing and choose instead to proceed with his claim, confident that his testimony, or that of others" would overcome the implication of refusing to take the test, Justice Moyer said.

Marc Jaffy, a lawyer representing the AFL-CIO, called the ruling "an important decision that upholds important constitutional rights to privacy."

"It takes away from an employer the right to say, `You have to submit to this test or your right to workers' comp benefits could be compromised,'" he said.

The ruling sends a negative message about drugs and alcohol in the workplace, said Roger Geiger, state director for the Ohio chapter of the National Federation of Independent Business.

"Those mixing work with drugs or alcohol not only threaten their own safety, but also that of their fellow employees and the general public," he said.

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