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Ohio Rev. Code Ann. § 4123.34; Ohio Admin. Code § 4123-17-58

Ohio Rev. Code Ann. § 4123.34; Ohio Admin. Code § 4123-17-58 – Voluntary Laws Affecting Drug and Alcohol Testing

4123.34 Solvency of funds - premium rates.
It shall be the duty of the bureau of workers’ compensation board of directors and the administrator of workers’ compensation to safeguard and maintain the solvency of the state insurance fund and all other funds specified in this chapter and Chapters 4121., 4127., and 4131. of the Revised Code. The administrator, in the exercise of the powers and discretion conferred upon the administrator in section 4123.29 of the Revised Code, shall fix and maintain, with the advice and consent of the board, for each class of occupation or industry, the lowest possible rates of premium consistent with the maintenance of a solvent state insurance fund and the creation and maintenance of a reasonable surplus, after the payment of legitimate claims for injury, occupational disease, and death that the administrator authorizes to be paid from the state insurance fund for the benefit of injured, diseased, and the dependents of killed employees. In establishing rates, the administrator shall take into account the necessity of ensuring sufficient money is set aside in the premium payment security fund to cover any defaults in premium obligations. The administrator shall observe all of the following requirements in fixing the rates of premium for the risks of occupations or industries:
(A) The administrator shall keep an accurate account of the money paid in premiums by each of the several classes of occupations or industries, and the losses on account of injuries, occupational disease, and death of employees thereof, and also keep an account of the money received from each individual employer and the amount of losses incurred against the state insurance fund on account of injuries, occupational disease, and death of the employees of the employer.
(B) A portion of the money paid into the state insurance fund shall be set aside for the creation of a surplus fund account within the state insurance fund. Any references in this chapter or in Chapter 4121., 4125., 4127., or 4131. of the Revised Code to the surplus fund, the surplus created in this division, the statutory surplus fund, or the statutory surplus of the state insurance fund are hereby deemed to be references to the surplus fund account. The administrator may transfer the portion of the state insurance fund to the surplus fund account as the administrator determines is necessary to satisfy the needs of the surplus fund account and to guarantee the solvency of the state insurance fund and the surplus fund account. In addition to all statutory authority under this chapter and Chapter 4121. of the Revised Code, the administrator has discretionary and contingency authority to make charges to the surplus fund account. The administrator shall account for all charges, whether statutory, discretionary, or contingency, that the administrator may make to the surplus fund account. A revision of basic rates shall be made annually on the first day of July.
Notwithstanding any provision of the law to the contrary, one hundred eighty days after the effective date on which self-insuring employers first may elect under division (D) of section 4121.66 of the Revised Code to directly pay for rehabilitation expenses, the administrator shall calculate the deficit, if any, in the portion of the surplus fund account that is used for reimbursement to self-insuring employers for all expenses other than handicapped reimbursement under section 4123.343 of the Revised Code. The administrator, from time to time, may determine whether the surplus fund account has such a deficit and may assess all self-insuring employers who participated in the portion of the surplus fund account during the accrual of the deficit and who during that time period have not made the election under division (D) of section 4121.66 of the Revised Code the amount the administrator determines necessary to reduce the deficit.
Revisions of basic rates shall be in accordance with the oldest four of the last five calendar years of the combined accident and occupational disease experience of the administrator in the administration of this chapter, as shown by the accounts kept as provided in this section, excluding the experience of employers that are no longer active if the administrator determines that the inclusion of those employers would have a significant negative impact on the remainder of the employers in a particular manual classification; and the administrator shall adopt rules, with the advice and consent of the board, governing rate revisions, the object of which shall be to make an equitable distribution of losses among the several classes of occupation or industry, which rules shall be general in their application.
(C) The administrator may apply that form of rating system that the administrator finds is best calculated to merit rate or individually rate the risk more equitably, predicated upon the basis of its individual industrial accident and occupational disease experience, and may encourage and stimulate accident prevention. The administrator shall develop fixed and equitable rules controlling the rating system, which rules shall conserve to each risk the basic principles of workers’ compensation insurance.
(D) The administrator, from the money paid into the state insurance fund, shall set aside into an account of the state insurance fund titled a premium payment security fund sufficient money to pay for any premiums due from an employer and uncollected that are in excess of the employer’s premium security deposit.
The fund shall be in the custody of the treasurer of state. All investment earnings of the fund shall be deposited in the fund. Disbursements from the fund shall be made by the bureau of workers’ compensation upon order of the administrator to the state insurance fund. The use of the moneys held by the premium payment security fund is restricted to reimbursement to the state insurance fund of premiums due and uncollected in excess of an employer’s premium security deposit. The moneys constituting the premium payment security fund shall be maintained without regard to or reliance upon any other fund. This section does not prevent the deposit or investment of the premium payment security fund with any other fund created by this chapter, but the premium payment security fund is separate and distinct for every other purpose and a strict accounting thereof shall be maintained.
(E) The administrator may grant discounts on premium rates for employers who meet either of the following requirements:
(1) Have not incurred a compensable injury for one year or more and who maintain an employee safety committee or similar organization or make periodic safety inspections of the workplace.
(2) Successfully complete a loss prevention program prescribed by the superintendent of the division of safety and hygiene and conducted by the division or by any other person approved by the superintendent.
(F)(1) In determining the premium rates for the construction industry the administrator shall calculate the employers’ premiums based upon the actual remuneration construction industry employees receive from construction industry employers, provided that the amount of remuneration the administrator uses in calculating the premiums shall not exceed an average weekly wage equal to one hundred fifty per cent of the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code.
(2) Division (F)(1) of this section shall not be construed as affecting the manner in which benefits to a claimant are awarded under this chapter.
(3) As used in division (F) of this section, “construction industry” includes any activity performed in connection with the erection, alteration, repair, replacement, renovation, installation, or demolition of any building, structure, highway, or bridge.
(G) The administrator of workers’ compensation shall not place a limit on the length of time that an employer may participate in the bureau of workers’ compensation drug free workplace and workplace safety programs.

4123-17-58 [Effective until 7/1/2012] Drug-free safety program (DFSP) and comparable program.
Pursuant to division (E) of section 4123.34 of the Revised Code, the administrator may grant a benefit in the form of a discount on premium rates and/or grants to an eligible employer that meets the drug-free safety program (DFSP) requirements under the provisions of this rule.
(A) As used in this rule:
(1) “Program,” “Drug-free safety program” or “DFSP” means the bureau’s loss prevention and safety program which may offer a benefit to eligible employers for implementing a program encompassing elements that promote occupational safety and health for workers by preventing and reducing the risk of workplace accidents and injuries attributed to the use and abuse of alcohol and other drugs, including prescription, over-the-counter, and illegal drugs.
(2) “Comparable program” means a program referred to in section 153.03 of the Revised Code required for construction contractors and subcontractors with elements that are, generally, similar to those of the bureau’s DFSP and which qualify employers in the construction industry to provide labor services and/or supervision of such labor services on state of Ohio public improvement projects.
(3) “Safety-sensitive position or function” means any job position or work-related function or job task designated as such by the employer, which through the nature of the activity could be detrimental or dangerous to the physical well-being of the employee, co-workers, customers or the general public through a lapse in attention or judgment. The safety-sensitive position or function may include positions or functions where national security or the security of employees, co-workers, customers, or the general public may be seriously jeopardized or compromised through a lapse in attention or judgment.
(4) “Supervisor” means an employee who supervises others in the performance of their jobs, has the authority and responsibility to initiate reasonable suspicion testing when it is appropriate, and has the authority to recommend or perform hiring or firing procedures.
(5) “Consortium” means a pool of employers and their employees established to provide services to employers to help the employers meet DFSP requirements. A consortium may contract with laboratories certified by the U.S. department of health and human services/substance abuse and mental health services administration and will operate in concert with established standardized protocols and procedures that are consistent with current federal guidelines for testing.
(B) Application process.
(1) The bureau shall provide application and renewal forms to be completed by employers seeking to participate in the DFSP and shall have final authority to approve a state fund employer’s participation in this program. Self-insuring employers and state-fund employers not participating in the DFSP should submit an application for a comparable program if they bid on or provide labor for state of Ohio public improvement/construction projects. An employer’s participation and renewal of participation in a DFSP shall be on a program year basis.
(2) An employer may withdraw its application for enrollment in the DFSP at any time prior to the start of the program year. When an employer becomes aware that it is unable to meet the requirements of the DFSP level at which the employer is participating, the employer shall notify the bureau and the bureau shall withdraw the employer from the program. The employer shall return any monetary benefits for any program year for which a program requirement was not fully met.
(C) Eligibility requirements.
Eligibility for program benefits is limited to state-fund employers. Self-insuring employers and state-fund employers desiring a comparable program shall identify this intent on the DFSP application form and shall satisfy all of the eligibility requirements of this rule or of section 153.03 of the Revised Code. An employer that is found to be ineligible for participation in the DFSP may reapply for a subsequent program year. An employer may implement a DFSP that exceeds the minimum requirements for the program level (basic or advanced) approved by the bureau.
(1) The employer shall be current at the time of bureau review of application for the DFSP and throughout the program year. Current means an employer is not more than forty-five days past due on any and all premiums, assessments, penalties or monies otherwise due to any fund administered by the bureau, including amounts due for retrospective rating.
(2) The employer may not have cumulative lapses in workers’ compensation coverage in excess of forty days within the twelve months preceding the original application deadline or subsequent anniversary deadline wherein the employer seeks renewal for the DFSP.
(3) The employer shall be in an active, reinstated, or debtor-in-possession policy status at the time of bureau review of application for the DFSP.
(4) The employer shall continue to meet all eligibility requirements during participation in the program, when applying for renewal, and during each subsequent year of participation in the program.
(D) General program requirements.
The chief executive officer or designated management representative of the employer shall sign and certify the application form that the employer shall meet, at a minimum, the DFSP requirements for which the employer has applied. The signature certifies that the employer shall return any monetary benefits associated with any benefits received, should the employer fail to implement or meet the requirements of the DFSP for which it has applied and been approved.
(E) Program requirements – all program level.
To receive a benefit as specified in paragraph (I) of this rule for implementing a basic DFSP, an employer shall fully implement, at a minimum, the following program elements by the applicable dates:
(1) Safety – The DFSP requires a participating employer to integrate safety into its DFSP including, but not limited to:
(a) Completing and submitting the bureau’s online safety assessment within the time-frame specified by the bureau;
(b) Ensuring each supervisor completes, one time at a minimum, accident-analysis training within the time-frame specified by the bureau; and
(c) Utilizing online accident-analysis reporting on the bureau’s website within the time-frame specified by the bureau from the date of the accident or the date the employer first becomes aware of the accident.
(2) Policy – Employers are required to put in place a written DFSP policy which shall, at minimum, provide a full and fair disclosure of the reasons for implementing a DFSP, the program provisions and procedures, the responsibilities and rights of all employees subject to the provisions and procedures of the program, the consequences of an employee’s failure to comply with the provisions and procedures of the program, that the DFSP applies to all employees, and that the employer is committed to employee health.
(3) Employee education – The DFSP shall include education for all employees and supervisors to promote awareness and understanding of the content of the employer’s DFSP written policy, and the safety, security and health risks as well as declining productivity associated with the use of alcohol and other drugs in the workplace. The training shall be provided during the initial year of participation and annually thereafter.
(4) Supervisor skill-building training – The DFSP shall include skill-building training for all supervisors in support of enforcing the employer’s written DFSP policy and procedures during the initial year of participation and annually thereafter.
(5) Drug and alcohol testing – The DFSP program shall include alcohol and other drug testing which conforms to the federal testing model. The employer shall implement and pay for alcohol and other drug testing required by DFSP participation other than for re-testing requested by an employee and follow-up testing. Alcohol and other drug testing shall occur as specified by the bureau and shall be applied to, at minimum, the following categories:
(a) Pre-employment/new-hire drug testing;
(b) Post-accident alcohol and other drug testing;
(c) Reasonable suspicion alcohol and other drug testing; and
(d) Return-to-duty and follow-up alcohol and other drug testing.
(6) Employee assistance – The DFSP shall include an employee assistance plan.
Upon an employee testing positive, in addition to any corrective action deemed appropriate as specified in the employer’s written policy, the employer shall, at minimum, explain to the employee what a substance abuse assessment is and, by way of referral, shall provide a list containing names and addresses of qualified substance abuse assessment resources that can administer a substance assessment.
(F) Program requirements – advanced program level.
To receive a benefit as specified in paragraph (I) of this rule for implementing and operating an advanced DFSP, an employer shall fully implement, at a minimum, the following program elements by the applicable dates:
(1) The employer shall meet all of the requirements of a basic DFSP as provided in paragraph (E) of this rule.
(2) The employer shall:
(a) Apply for the DFSP advanced level on the initial participation application or request renewal into the advanced level when completing the self-assessment progress report;
(b) Ensure that its written DFSP policy clearly reflects how random drug testing will be implemented and how additional employee assistance will be provided;
(c) Ensure conducting fifteen per cent or higher random drug testing of the employer’s workforce each program year;
(d) Pre-establish a relationship for a substance assessment of an employee who tests positive, comes forward voluntarily to indicate he or she has a substance problem, or is referred by a supervisor, with the employer paying for the cost of the assessment;
(e) Timely submit a safety action plan based on the results of the completed safety assessment which outlines specific safety process improvements the employer intends to implement during the remainder of the program year; and
(f) Commit to not terminate the employment of an employee who tests positive for the first time, who comes forward voluntarily to indicate he or she has a substance problem, or who is referred by a supervisor for an assessment.
(G) Progress reporting and renewal requirements.
(1) The employer shall comply with the following requirements for initial participation and annual renewal of DFSP participation within the time-frames specified by the bureau. In order to qualify for renewal, an employer shall have implemented all requirements of its basic or advanced level DFSP by the implementation date specified by the bureau. Comparable employers shall have in place a compliant written DFSP policy and shall have completed employee education and supervisor training for all employees and supervisors that will work on a state of Ohio public improvement project as specified in section 153.03 of the Revised Code no later than the time the employer provides labor services or on-site supervision of such labor services on such a project.
(2) The employer shall meet reporting requirements which require submission of an annual report on a form provided by the bureau showing that the DFSP requirements were met by the deadline date specified by the bureau for each year of participation in a DFSP. The reporting deadline date for January participants is the last business day in September and, for July participants, is the last business day in March. If the employer is applying for renewal, the employer shall stipulate which DFSP level or comparable program is requested for the following program year. Reports shall be certified by the chief executive officer or designated management representative of the employer. The employer shall provide information as requested by the bureau regarding each component of its basic or advanced level or comparable program, shall provide any other documentation required by the bureau and shall maintain on-site statistics as required by the bureau. The bureau shall hold the information submitted on or with these annual reports and other information submitted by the employer in meeting DFSP requirements as confidential pursuant to section 149.43 of the Revised Code to avoid revealing an employer’s proprietary trade secrets.
(a) Safety – For the DFSP basic level, the employer shall report its progress to the bureau in terms of the required safety assessment, including what was learned through the safety assessment and submission of online accident-investigation information. For DFSP advanced level, the employer shall also report progress on its safety action plan.
(b) Policy – The employer shall certify to the bureau that it has developed a written DFSP policy that meets or exceeds the requirements associated with the DFSP level or comparable program for which the employer is participating. The employer shall submit a copy of the written policy as required by the bureau.
(c) Employee education – The employer shall provide information to the bureau regarding how employee education requirements have been met.
(d) Supervisor training – The employer shall provide information to the bureau regarding how supervisor training requirements have been met.
(e) Drug and alcohol testing – The employer shall report statistics regarding alcohol and other drug testing to show how testing requirements were met. The employer shall report information about positive tests including the drugs involved and their measured testing values, and the subject employee gender, age, and location of employment.
(f) Employee assistance – For the DFSP basic level, the employer shall provide information regarding number of employees terminated based on a first positive alcohol or other drug test, number of employees referred for an assessment, and other assistance information required by the bureau. For the DFSP advanced level, the employer shall also provide information related to number of employees who tested positive and were given a second chance, number of employees whose employment was terminated and circumstances associated with termination, and additional information as required by the bureau.
(g) Demographics – An employer implementing a DFSP shall report its average annual number of employees and number of new hires since the start of the current DFSP program year.
(H) Disqualification from program and reapplication.
The bureau may remove an employer’s participation in the DFSP for failure to fully implement a DFSP in compliance with the approved program level requirements. The bureau shall send written notice of cancellation to the employer and shall require the employer to reimburse the bureau for any benefits received to which the employer was not entitled.
(1) If the bureau removes an employer from the DFSP under this rule for failure to meet program requirements, the employer may reapply for the DFSP for the next program year, unless the employer has received a benefit and has failed to reimburse the bureau for the benefit. The bureau may deny the application based on circumstances of previous participation.
(2) When an employer becomes aware that it is unable to fully implement its DFSP by the required implementation date, the employer shall notify the bureau immediately and shall reimburse the bureau for any benefits received for participating during that program year.
(I) Benefit requiremens.
An employer participating in the DFSP may be eligible to receive a benefit as provided for in this rule and as specified in appendix A to this rule.
(1) Any benefit in the form of a discount to premiums will be applied to the employer’s premium rate, semi-annually or annually depending on the payroll reporting and premium payment cycle of the employer, during the program year of participation. It will not be applied to disabled workers’ relief fund assessments or administrative assessments, nor will the benefit alter the employer’s actual experience modifier under rule 4123-17-03 of the Administrative Code.
(2) The application of a DFSP discount shall occur semi-annually or annually in concert with each program year of DFSP participation.
(J) Application and renewal rejection.
An employer may appeal application rejection or renewal rejection to the bureau through the specified bureau complaint process.
(K) Hold harmless statement.
Nothing in this rule requires an employer to implement any policies or practices in developing a DFSP that conflict or interfere with existing collective bargaining agreements. However, a collective bargaining agreement that prevents an employer from complying with program requirements may prevent an employer from participating in the DFSP. Where there are legal issues related to development and implementation of a DFSP, it is the employer’s responsibility to consult with its legal counsel to resolve these issues. An employer shall certify in its application to the bureau that it shall hold the state of Ohio harmless for responsibility or liability under the DFSP.
(L) Drug-free grants.
Pursuant to section 4121.37 of the Revised Code, the administrator may establish a program of DFSP safety grants associated with reimbursement at specified levels or rates for specified DFSP start-up costs for eligible employers. These grants may be available to only DFSP employers and not to those with a comparable program.
(M) Combinations, partial transfers and successors.
Where an employer that is participating in a basic or advanced level DFSP is combined into another policy, has a partial transfer or is a successor, the bureau shall determine how the employer’s DFSP participation should transfer with considerations for whether the involved entity also has a DFSP and the level of the employer’s DFSP.
Effective: 11/15/2010 Promulgated Under: 111.15 Statutory Authority: 4121.12, 4121.121Rule Amplifies: 4123.29, 4123.34Prior Effective Dates: 4/1/97, 7/1/98, 5/20/99, 7/1/99, 9/7/99, 3/27/00, 1/1/01, 7/1/01, 1/1/02, 12/1/02, 5/15/03, 7/1/04, 05/21/09, 7/1/10
4123-17-58 [Effective 7/1/2012] Drug-free safety program (DFSP) and comparable program
(A) Definitions.
As used in this rule:
(1) “Program,” “Drug-free safety program” or “DFSP” means the bureau’s loss prevention and safety program which may offer a benefit to eligible employers for implementing a program encompassing elements that promote occupational safety and health for workers by preventing and reducing the risk of workplace accidents and injuries attributed to the use and abuse of alcohol and other drugs, including prescription, over-the-counter, and illegal drugs.
(2) “Comparable program” means a program referred to in section 153.03 of the Revised Code required for construction contractors and subcontractors with elements that are, generally, similar to those of the bureau’s DFSP and which qualify employers in the construction industry to provide labor services and/or supervision of such labor services on state of Ohio public improvement projects.
(3) “Safety-sensitive position or function” means any job position or work-related function or job task designated as such by the employer, which through the nature of the activity could be detrimental or dangerous to the physical well-being of the employee, co-workers, customers or the general public through a lapse in attention or judgment. The safety-sensitive position or function may include positions or functions where national security or the security of employees, co-workers, customers, or the general public may be seriously jeopardized or compromised through a lapse in attention or judgment.
(4) “Supervisor” means an employee who supervises others in the performance of their jobs, has the authority and responsibility to initiate reasonable suspicion testing when it is appropriate, and has the authority to recommend or perform hiring or firing procedures.
(5) “Consortium” means a pool of employers and their employees established to provide services to employers to help the employers meet DFSP requirements. A consortium may contract with laboratories certified by the U.S. department of health and human services/substance abuse and mental health services administration and will operate in concert with established standardized protocols and procedures that are consistent with current federal guidelines for testing.
(B) Application process.
(1) The bureau shall provide application and renewal forms to be completed by employers seeking to participate in the DFSP and shall have final authority to approve a state fund employer’s participation in this program. Self-insuring employers and state-fund employers not participating in the DFSP should submit an application for a comparable program if they bid on or provide labor for state of Ohio public improvement/construction projects. An employer’s participation and renewal of participation in a DFSP shall be on a program year basis.
(2) An employer may withdraw its application for enrollment in the DFSP at any time prior to the start of the program year. When an employer becomes aware that it is unable to meet the requirements of the DFSP level at which the employer is participating, the employer shall notify the bureau and the bureau shall withdraw the employer from the program. The employer shall return any monetary benefits for any program year for which a program requirement was not fully met.
(C) Eligibility requirements.
Eligibility for program benefits is limited to state-fund employers. Self-insuring employers and state-fund employers desiring a comparable program shall identify this intent on the DFSP application form and shall satisfy all of the eligibility requirements of this rule or of section 153.03 of the Revised Code. An employer that is found to be ineligible for participation in the DFSP may reapply for a subsequent program year. An employer may implement a DFSP that exceeds the minimum requirements for the program level (basic or advanced) approved by the bureau.
(1) The employer must be current with respect to all payments due to the bureau, as defined in paragraph (A)(3) of rule 4123-17-14 of the Administrative Code.
(2) The employer may not have cumulative lapses in workers’ compensation coverage in excess of forty days within the twelve months preceding the original application deadline or subsequent anniversary deadline wherein the employer seeks renewal for the DFSP.
(3) The employer shall be in an active, reinstated, or debtor-in-possession policy status at the time of bureau review of application for the DFSP.
(4) The employer shall continue to meet all eligibility requirements during participation in the program, when applying for renewal, and during each subsequent year of participation in the program.
(D) General program requirements.
The chief executive officer or designated management representative of the employer shall sign and certify the application form that the employer shall meet, at a minimum, the DFSP requirements for which the employer has applied. The signature certifies that the employer shall return any monetary benefits associated with any benefits received, should the employer fail to implement or meet the requirements of the DFSP for which it has applied and been approved.
(E) Program requirements – all program levels.
To receive a benefit as specified in paragraph (I) of this rule for implementing a basic DFSP, an employer shall fully implement, at a minimum, the following program elements by the applicable dates:
(1) Safety – The DFSP requires a participating employer to integrate safety into its DFSP including, but not limited to:
(a) Completing and submitting the bureau’s online safety assessment within the time-frame specified by the bureau;
(b) Ensuring each supervisor completes, one time at a minimum, accident-analysis training within the time-frame specified by the bureau; and
(c) Utilizing online accident-analysis reporting on the bureau’s website within the time-frame specified by the bureau from the date of the accident or the date the employer first becomes aware of the accident.
(2) Policy – Employers are required to put in place a written DFSP policy which shall, at minimum, provide a full and fair disclosure of the reasons for implementing a DFSP, the program provisions and procedures, the responsibilities and rights of all employees subject to the provisions and procedures of the program, the consequences of an employee’s failure to comply with the provisions and procedures of the program, that the DFSP applies to all employees, and that the employer is committed to employee health.
(3) Employee education – The DFSP shall include education for all employees and supervisors to promote awareness and understanding of the content of the employer’s DFSP written policy, and the safety, security and health risks as well as declining productivity associated with the use of alcohol and other drugs in the workplace. The training shall be provided during the initial year of participation and annually thereafter.
(4) Supervisor skill-building training – The DFSP shall include skill-building training for all supervisors in support of enforcing the employer’s written DFSP policy and procedures during the initial year of participation and annually thereafter.
(5) Drug and alcohol testing – The DFSP program shall include alcohol and other drug testing which conforms to the federal testing model. The employer shall implement and pay for alcohol and other drug testing required by DFSP participation other than for re-testing requested by an employee and follow-up testing. Alcohol and other drug testing shall occur as specified by the bureau and shall be applied to, at minimum, the following categories:
(a) Pre-employment/new-hire drug testing;
(b) Post-accident alcohol and other drug testing;
(c) Reasonable suspicion alcohol and other drug testing; and
(d) Return-to-duty and follow-up alcohol and other drug testing.
(6) Employee assistance – The DFSP shall include an employee assistance plan. Upon an employee testing positive, in addition to any corrective action deemed appropriate as specified in the employer’s written policy, the employer shall, at minimum, explain to the employee what a substance abuse assessment is and, by way of referral, shall provide a list containing names and addresses of qualified substance abuse assessment resources that can administer a substance assessment.
(F) Program requirements – advanced program level.
To receive a benefit as specified in paragraph (I) of this rule for implementing and operating an advanced DFSP, an employer shall fully implement, at a minimum, the following program elements by the applicable dates:
(1) The employer shall meet all of the requirements of a basic DFSP as provided in paragraph (E) of this rule.
(2) The employer shall:
(a) Apply for the DFSP advanced level on the initial participation application or request renewal into the advanced level when completing the self-assessment progress report;
(b) Ensure that its written DFSP policy clearly reflects how random drug testing will be implemented and how additional employee assistance will be provided;
(c) Ensure conducting fifteen per cent or higher random drug testing of the employer’s workforce each program year;
(d) Pre-establish a relationship for a substance assessment of an employee who tests positive, comes forward voluntarily to indicate he or she has a substance problem, or is referred by a supervisor, with the employer paying for the cost of the assessment;
(e) Timely submit a safety action plan based on the results of the completed safety assessment which outlines specific safety process improvements the employer intends to implement during the remainder of the program year; and
(f) Commit to not terminate the employment of an employee who tests positive for the first time, who comes forward voluntarily to indicate he or she has a substance problem, or who is referred by a supervisor for an assessment.
(G) Progress reporting and renewal requirements.
(1) The employer shall comply with the following requirements for initial participation and annual renewal of DFSP participation within the time-frames specified by the bureau. In order to qualify for renewal, an employer shall have implemented all requirements of its basic or advanced level DFSP by the implementation date specified by the bureau. Comparable employers shall have in place a compliant written DFSP policy and shall have completed employee education and supervisor training for all employees and supervisors that will work on a state of Ohio public improvement project as specified in section 153.03 of the Revised Code no later than the time the employer provides labor services or on-site supervision of such labor services on such a project.
(2) The employer shall meet reporting requirements which require submission of an annual report on a form provided by the bureau showing that the DFSP requirements were met by the deadline date specified by the bureau for each year of participation in a DFSP. The reporting deadline date for January participants is the last business day in September and, for July participants, is the last business day in March. If the employer is applying for renewal, the employer shall stipulate which DFSP level or comparable program is requested for the following program year. Reports shall be certified by the chief executive officer or designated management representative of the employer. The employer shall provide information as requested by the bureau regarding each component of its basic or advanced level or comparable program, shall provide any other documentation required by the bureau and shall maintain on-site statistics as required by the bureau. The bureau shall hold the information submitted on or with these annual reports and other information submitted by the employer in meeting DFSP requirements as confidential pursuant to section 149.43 of the Revised Code to avoid revealing an employer’s proprietary trade secrets.
(a) Safety – For the DFSP basic level, the employer shall report its progress to the bureau in terms of the required safety assessment, including what was learned through the safety assessment and submission of online accident-investigation information. For DFSP advanced level, the employer shall also report progress on its safety action plan.
(b) Policy – The employer shall certify to the bureau that it has developed a written DFSP policy that meets or exceeds the requirements associated with the DFSP level or comparable program for which the employer is participating. The employer shall submit a copy of the written policy as required by the bureau.
(c) Employee education – The employer shall provide information to the bureau regarding how employee education requirements have been met.
(d) Supervisor training – The employer shall provide information to the bureau regarding how supervisor training requirements have been met.
(e) Drug and alcohol testing – The employer shall report statistics regarding alcohol and other drug testing to show how testing requirements were met. The employer shall report information about positive tests including the drugs involved and their measured testing values, and the subject employee gender, age, and location of employment.
(f) Employee assistance – For the DFSP basic level, the employer shall provide information regarding number of employees terminated based on a first positive alcohol or other drug test, number of employees referred for an assessment, and other assistance information required by the bureau. For the DFSP advanced level, the employer shall also provide information related to number of employees who tested positive and were given a second chance, number of employees whose employment was terminated and circumstances associated with termination, and additional information as required by the bureau.
(g) Demographics – An employer implementing a DFSP shall report its average annual number of employees and number of new hires since the start of the current DFSP program year.
(H) Disqualification from program and reapplication.
The bureau may remove an employer’s participation in the DFSP for failure to fully implement a DFSP in compliance with the approved program level requirements. The bureau shall send written notice of cancellation to the employer and shall require the employer to reimburse the bureau for any benefits received to which the employer was not entitled.
(1) If the bureau removes an employer from the DFSP under this rule for failure to meet program requirements, the employer may reapply for the DFSP for the next program year, unless the employer has received a benefit and has failed to reimburse the bureau for the benefit. The bureau may deny the application based on circumstances of previous participation.
(2) When an employer becomes aware that it is unable to fully implement its DFSP by the required implementation date, the employer shall notify the bureau immediately and shall reimburse the bureau for any benefits received for participating during that program year.
(I) Benefit requirements.
An employer participating in the DFSP may be eligible to receive a benefit as provided for in this rule and as specified in the appendix to this rule.
(1) Any benefit in the form of a discount to premiums will be applied to the employer’s premium rate, semi-annually or annually depending on the payroll reporting and premium payment cycle of the employer, during the program year of participation. It will not be applied to disabled workers’ relief fund assessments or administrative assessments, nor will the benefit alter the employer’s actual experience modifier under rule 4123-17-03 of the Administrative Code.
(2) The application of a DFSP discount shall occur semi-annually or annually in concert with each program year of DFSP participation.
(J) Application and renewal rejection.
An employer may appeal application rejection or renewal rejection to the bureau through the specified bureau complaint process.
(K) Hold harmless statement.
Nothing in this rule requires an employer to implement any policies or practices in developing a DFSP that conflict or interfere with existing collective bargaining agreements. However, a collective bargaining agreement that prevents an employer from complying with program requirements may prevent an employer from participating in the DFSP. Where there are legal issues related to development and implementation of a DFSP, it is the employer’s responsibility to consult with its legal counsel to resolve these issues. An employer shall certify in its application to the bureau that it shall hold the state of Ohio harmless for responsibility or liability under the DFSP.
(L) Drug-free grants.
Pursuant to section 4121.37 of the Revised Code, the administrator may establish a program of DFSP safety grants associated with reimbursement at specified levels or rates for specified DFSP start-up costs for eligible employers. These grants may be available to only DFSP employers and not to those with a comparable program.
(M) Combinations, partial transfers and successors.
Where an employer that is participating in a basic or advanced level DFSP is combined into another policy, has a partial transfer or is a successor, the bureau shall determine how the employer’s DFSP participation should transfer with considerations for whether the involved entity also has a DFSP and the level of the employer’s DFSP.

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