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This website publishes administrative rules on their effective dates, as designated by the adopting state agencies, colleges, and universities.

Chapter 123:1-76 | Drug-Free Workplace Program

 
 
 
Rule
Rule 123:1-76-01 | Drug-free workplace definitions of terms.
 

For purposes of the drug-free workplace services program:

(A) "Abuse" means:

(1) Any use of an illegal drug;

(2) Intentional misuse of any over-the-counter drug in cases where such misuse impairs job performance;

(3) Use of any prescription drug in a manner inconsistent with its prescription, or under circumstances where use is not permitted;

(4) The use of recommended medical marijuana in a manner inconsistent with a medical purpose, or under circumstances where use is not permitted;

(5) The use of any restricted substance under circumstances where use is not permitted;

(6) Use of alcohol where such use impairs job performance; and

(B) "Agency" means any office, department, commission, board, institution or facility in the executive branch of government.

(C) "Alcohol" means ethyl alcohol or ethanol.

(D) "Applicant testing" means drug testing of final applicants for positions in state service who have tentatively met all relevant employment criteria but have not been officially offered employment with the state.

(E) "Appointing authority" means the officer, commission, board, or body having the power of appointment to, or removal from, positions in any office, department, commission, board, institution, or facility.

(F) "Chain of custody" means procedures to ensure the integrity of each specimen for drug testing by tracking its storage from point of collection to final disposition.

(G) "Collection site" means a place designated by the director of the department of administrative services where individuals present themselves for the purpose of providing a specimen to be analyzed for the presence of drugs.

(H) "Confirmation test" means a drug test on a specimen to substantiate the results of a prior drug test on the specimen. The confirmation test must use an alternate method of equal or greater sensitivity than that used in the previous or initial drug test.

(I) "Drug" means:

(1) Any drug which, under the Federal Food, Drug and Cosmetic Act, federal narcotic law, sections 3715.01 to 3715.72, or Chapter 3719. of the Revised Code, may be dispensed only upon a prescription;

(2) Any drug which contains a schedule v controlled substance and which is exempt from Chapter 3719. of the Revised Code, or to which such chapter does not apply; or

(3) Any other substance defined in section 4729.01 of the Revised Code.

(J) "Controlled substance" means those substances defined in division (G) of section 4729:9-2-01 of the Administrative Code.

(K) Drug program coordinator" means the person responsible for implementing, directing and managing the drug-free workplace program within the agency. The drug program coordinator serves as the agency's principal contact with the testing laboratory and maintains the effective operation of the drug-free workplace program within the agency.

(L) "Drug test" means a chemical test administered for the purpose of determining the presence or absence of a drug or metabolites in a person's bodily fluids.

(M) "Employee" means any person holding a position subject to appointment, removal, promotion, or reduction by an appointing officer who is paid by warrant of the director of budget and management.

(N) "Follow-up test" means a drug and/or alcohol test for employees referred through administrative channels to a counseling or rehabilitation program such as those recommended by or associated with the employee assistance program. Such employees shall undergo follow-up testing for a time and frequency stipulated by the administrator of the drug-free workplace services program, or as stipulated by the appropriate collective bargaining agreement for the employee. Such testing is distinct from testing which may be imposed as a component of the counseling or rehabilitation program itself.

(O) "Illegal drug" means any substance other than alcohol; having psychological and/or physiological effects on a human being that is not a prescription medication, non-prescription medication, or medical marijuana when used in accordance with applicable Ohio law; including controlled dangerous substances and controlled substance analogs of volatile substances which produce the psychological and/or physiological effects of a controlled dangerous substance.

(P) "Initial test" means a drug test to determine the presence or absence of drugs or their metabolites in specimens.

(Q) "Laboratory" means a facility having certification, staff, equipment and personnel required by the director of the department of administrative services or applicable federal regulations to perform urine testing for drugs or breath testing for alcohol for employees of any office, department, commission, board, institution or facility in the executive branch of state government.

(R) "Medical marijuana" means marijuana that is cultivated, processed, dispensed, tested, possessed, or used for medical purposes in accordance with a proper registration with the registry established by the Ohio state board of pharmacy and with a valid and active recommendation issued by a physician in compliance with applicable Ohio law.

(S) "Medical review officer" means a person who is a licensed physician or other professional delineated in federal regulations with knowledge of substance abuse disorders and the appropriate medical training to interpret and evaluate all positive test results together with a person's medical history and other relevant biomedical information.

(T) "Drug-free workplace services program" means a program administered by an agency of Ohio state government designated by the governor to implement Ohio's drug-free workplace programs and to administer and coordinate Ohio's compliance with provisions of the federal Drug-Free Workplace Act of 1988, the Omnibus Transportation Employee Testing Act of 1991, and any other federal or state laws or regulations requiring substance abuse testing.

(U) "Positive test result" means a test result that was positive on an initial FDA-approved immunoassay test, confirmed by a gas chromatography/mass spectrometry assay (or other confirmatory test(s) meeting national institute on drug abuse standards and approved by the department of administrative services), and reviewed and verified by a medical review officer, or a breath test for alcohol administered by the state patrol or a person qualified under rule 3701-53-07 of the Administrative Code which equals or exceeds a threshold level established in section 4511.19 of the Revised Code as constituting a positive test for being under the influence of alcohol.

(V) "Prescription" means a written or oral order for a controlled substance for the use of a particular person or a particular animal given by a practitioner in the course of professional practice and in accordance with the regulations promulgated by the director of the United States drug enforcement administration pursuant to the federal drug abuse control laws. For purposes of this definition, medical marijuana is not a prescription medication.

(W) "Reasonable suspicion testing" means alcohol or other drug testing based on a belief that an employee is using or has used alcohol and/or drugs in violation of the employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience, and may be based upon, among other things:

(1) Observable phenomena, such as direct observation of alcohol and/or drug use and/or the physical symptoms or manifestations of being under the influence of alcohol and/or a drug;

(2) Abnormal conduct or erratic behavior while at work, absenteeism, tardiness, or deterioration in work performance which may reasonably be considered to be caused by alcohol and/or drug abuse;

(3) A report of alcohol and/or drug use provided by reliable and credible sources and which has been independently corroborated;

(4) Evidence that an individual has tampered with an alcohol or drug test during his/her employment with the current employer;

(5) Evidence that an employee is involved in the use, possession, sale, solicitation, or transfer of alcohol and/or other drugs while working, or while on the employer's premises or operating the employer's vehicle, machinery, or equipment.

(6) The occurrence of a significant incident involving an employee's on the job actions which has resulted in the personal injury of any person, or in which expensive property damage estimated to be in excess of two thousand dollars has occurred. The personal injury situations warranting reasonable suspicion testing shall be those stipulated in the relevant collective bargaining agreements, or in the absence of any such agreement, by the director of the department of administrative services.

(X) "Specimen" means a tissue or product of the human body chemically capable of revealing the presence of drugs in the human body.

(Y) "Substance" means alcohol or drugs.

(Z) "Workplace" means a state owned or utilized premise for official state business or any place where official state business is conducted.

Last updated April 4, 2022 at 8:40 AM

Supplemental Information

Authorized By: 124.09
Amplifies: 124.09, 124.34
Five Year Review Date: 1/15/2027
Prior Effective Dates: 11/10/1996
Rule 123:1-76-09 | Applicant testing.
 

(A) Every vacancy announcement for testing designated positions for the state service shall state:

"All final applicants tentatively selected for this position will be required to submit to urinalysis to test for illegal drug use prior to appointments. An applicant with a positive test shall not be offered employment."

(B) Each applicant shall be notified that appointment to the position will be contingent upon a negative test result. Failure of the vacancy announcement to contain this statement shall not preclude applicant testing if advance written notice is provided applicants in some other manner.

(C) The agency drug program coordinator or other designated agency person shall direct applicants to the appropriate collection site. The test must be undertaken as soon after notification as possible, and no later than thirty-two hours after notice to the applicant.

(D) Applicants shall be advised of the opportunity to offer an explanation or submit medical documentation of legally prescribed medications or a recommendation for medical marijuana which may explain a positive test result to the medical review officer. Such information will be reviewed only by the medical review officer in his/her determination of the validity of a positive confirmatory test result.

(E) Any agency of state government shall decline to extend a final offer of employment to any applicant with a verified positive test result and such applicant will not be reconsidered for state employment for a period of one year.

Last updated September 14, 2023 at 9:39 AM

Supplemental Information

Authorized By: 124.09
Amplifies: 124.09, 124.34
Five Year Review Date: 1/15/2027
Prior Effective Dates: 7/26/2002
Rule 123:1-76-10 | Reasonable suspicion testing.
 

(A) Where there is reasonable suspicion to believe that an employee, when appearing for duty or on the job, is under the influence of, or his/her job performance is impaired by, alcohol or other drugs, the employee may be required to submit a urine specimen for testing for the presence of drugs or a breath sample for testing for the presence of alcohol.

(B) Such reasonable suspicion must be based upon objective facts or specific circumstances found to exist that present a reasonable basis to believe that an employee is under the influence of, or is using or abusing, alcohol and/or other drugs. Examples of reasonable suspicion shall include, but need not be limited to, slurred speech, disorientation, and abnormal conduct or behavior.

(C) Reasonable suspicion must be documented in writing according to procedures prescribed in applicable federal regulations, any applicable collective bargaining agreement covering the employee or, in the absence of any such regulations or agreement, by procedures developed by the director of the department of administrative services.

(D) Reasonable suspicion testing shall also include incident-based accident or unsafe practice testing wherein employees involved in on-the-job accidents or who engage in unsafe on-duty job-related activities that pose a danger to themselves, to others, or the overall operation of the agency may be subject to testing. Such incident-based reasonable suspicion testing shall be for conditions and situations and according to procedures prescribed by applicable collective bargaining agreements covering the employee or, in the absence of any such agreement, according to conditions and procedures developed by the director of the department of administrative services. Employees subject to federal testing procedures will submit to federal post-accident testing as required by federal regulations.

(E) The employee shall be asked to provide the urine sample or submit to a breath test for alcohol in accordance with criteria delineated in the applicable collective bargaining agreement for the employee or, in the absence of any such agreement, according to criteria developed by the director of the department of administrative services or as required by federal regulations.

(F) Supervisors and managers shall be trained to address the abuse of alcohol or other drugs by employees, to recognize facts that give rise to reasonable suspicion, and the proper procedures for documenting facts and circumstances to support a finding of reasonable suspicion as required by collective bargaining agreements or, in the absence of any such agreements, by the director of the department of administrative services. Failure to receive such training shall not, however, invalidate otherwise proper reasonable suspicion testing.

(G) Employees shall be given the opportunity as required by applicable collective bargaining agreements or, in the absence of such agreements, as stipulated by the director of the department of administrative services to offer an explanation or submit medical documentation of legally prescribed medications, legally recommended medical marijuana, or exposure to toxic substances which may explain a positive test result. Such information shall be reviewed only by the medical review officer in his/her determination of the validity of a positive confirmatory test and shall be released to the employer only to explain a test result.

Last updated September 14, 2023 at 9:39 AM

Supplemental Information

Authorized By: 124.09
Amplifies: 124.09, 124.34
Five Year Review Date: 1/15/2027
Rule 123:1-76-11 | Finding of employee drug use and disciplinary consequences.
 

(A) An employee may be found to use illegal drugs on the basis of any appropriate evidence including, but not limited to:

(1) Direct observation;

(2) Evidence obtained from a workplace-related arrest or criminal conviction;

(3) A verified positive test result; or,

(4) An employee's voluntary admission.

(B) On the first occasion in which an employee has a confirmed positive alcohol or other drug test resulting from reasonable suspicion testing, the employee may be required to enroll in and successfully complete a substance abuse program certified by the Ohio department of mental health and addiction services.

(C) Disciplinary action taken against an employee found to use illegal drugs may include the full range of disciplinary actions, including removal. The severity of the action chosen will depend on the circumstances of each case and the requirements of any governing collective bargaining agreements and employing agency work rules, policies and procedures.

(D) Any employee who refuses to submit to a properly ordered alcohol or drug test shall be subject to disciplinary actions as stipulated in the governing collective bargaining agreement or, in the absence of any such agreement, the relevant agency work rules, policies and procedures.

(E) Attempts by an employee to alter or substitute the specimen provided for alcohol or drug testing shall be deemed a refusal to take the alcohol or drug test when required and shall subject the employee to the same disciplinary actions as required for refusing to submit to a properly ordered test.

Last updated April 4, 2022 at 8:40 AM

Supplemental Information

Authorized By: 124.09
Amplifies: 124.09, 124.34
Five Year Review Date: 1/15/2027
Prior Effective Dates: 10/6/2013