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Be wary of giving employees automatic post-injury drug tests

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Steer clear of drafting (or continuing to follow) a company policy that says all employees involved in workplace accidents will automatically receive drug and alcohol tests. Reason: Such random tests could be judged unnecessary and illegal if no reasonable suspicion exists that the injury resulted from drug or alcohol use.

Instead, draft a drug-testing policy that gives you the option to test workers involved in accidents. Just make sure you have business-related reasons to test. And require workers to read and sign your drug-testing policy.

Recent case: A new Ohio law allowed employers to conduct drug and alcohol testing on any worker injured on the job, whether or not the employer had any reason to believe the injury was drug- or alcohol-related. The law also said employees who refused such random tests were presumed intoxicated or under the effects of drugs.

But the Ohio Supreme Court struck down the law, saying it violated the U.S. Constitution's Fourth Amendment protection against unreasonable searches. "Ordinary people working ordinary jobs do not have the expectation that they are subject to searches without reason," the court said. (The State Ex Rel. Ohio AFL-CIO v. Ohio Bureau of Workers' Compensation, No. 2001-0642, Ohio, 2002)

Bottom line: This decision affects only Ohio employers but carries lessons for employers in other states.

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