Regards the BWC drug free workplace program

As Introduced

136th
General Assembly

Regular
Session
S. B. No. 347

2025-2026

Senator Johnson

Cosponsor: Senator Brenner

To
amend section 153.03 and to enact sections 4123.221, 4123.346, and
4123.347 of the Revised Code
regarding
the Bureau of Workers' Compensation drug free workplace program.

BE
IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section
1.
That
section 153.03 be amended and sections 4123.221, 4123.346, and
4123.347 of the Revised Code be enacted to read as follows:

Sec.
153.03.
(A)
As used in this section:

(1)
"Contracting authority" means any state agency or other
state instrumentality that is authorized to award a public
improvement contract.

(2)
"Bidder" means a person who submits a bid to a contracting
authority to perform work under a public improvement contract.

(3)
"Contractor" means any person with whom a contracting
authority has entered into a public improvement contract to provide
labor for a public improvement and includes a construction manager at
risk and a design-build firm.

(4)
"Subcontractor" means any person who undertakes to provide
any part of the labor on the site of a public improvement under a
contract with any person other than the contracting authority,
including all such persons in any tier.

(5)
"Construction manager" has the same meaning as in section
9.33 of the Revised Code.

(6)
"Construction manager at risk" has the same meaning as in
section 9.33 of the Revised Code.

(7)
"Design-build firm" has the same meaning as in section
153.65 of the Revised Code.

(8)
"Labor" means any activity performed by a person that
contributes to the direct installation of a product, component, or
system, or that contributes to the direct removal of a product,
component, or system.

(9)
"Public improvement contract" means any contract that is
financed in whole or in part with money appropriated by the general
assembly, or that is financed in any manner by a contracting
authority, and that is awarded by a contracting authority for the
construction, alteration, or repair of any public building, public
highway, or other public improvement.

(10)
"State agency" means every organized body, office, or
agency established by the laws of this state for the exercise of any
function of state government.

(B)
A contracting authority shall not award a public improvement contract
to a bidder, and a construction manager at risk or design-build firm
shall not award a subcontract, unless the contract or subcontract
contains both of the following:

(1)
The statements described in division (E) of this section;

(2)
Terms that require the contractor or subcontractor to be enrolled in
and be in good standing in the drug-free workplace program of the
bureau of workers' compensation or a comparable program approved by
the bureau that requires an employer to do all of the following:

(a)
Develop, implement, and provide to all employees a written substance
use policy that conveys full and fair disclosure of the employer's
expectations that no employee be at work with alcohol or drugs in the
employee's system, and specifies the consequences for violating the
policy.

(b)
Conduct drug and alcohol tests on employees in accordance with
division (B)(2)(c) of this section and under the following
conditions:

(i)
Prior to an individual's employment or
during

after

an
employee's probationary period for employment, which shall not exceed

one
hundred twenty
thirty

days
after the probationary period
begins
ends
;

(ii)
At random intervals while an employee provides labor or on-site
supervision of labor for a public improvement contract. The employer
shall use the neutral selection procedures required by the United
States department of transportation to determine which employees to
test and when to test those employees.

When testing employees under this division, the employer shall test
not less than ten per cent of the total number of the employer's
employees who are providing labor or on-site supervision of labor for
a public improvement contract.

(iii)
After an accident at the site where labor is being performed pursuant
to a public improvement contract. For purposes of this division,
"accident" has the meaning established in rules the
administrator of workers' compensation adopts pursuant to Chapters
4121. and 4123. of the Revised Code for the bureau's drug-free
workplace program, as those rules exist on March 30, 2007.

(iv)
When the employer, construction manager, construction manager at
risk, or design-build firm has reasonable suspicion that prior to an
accident an employee may be in violation of the employer's written
substance use policy. For purposes of this division, "reasonable
suspicion" has the meaning established in rules the
administrator adopts pursuant to Chapters 4121. and 4123. of the
Revised Code for the bureau's drug-free workplace program, as those
rules exist on March 30, 2007.

(v)
Prior to an employee returning to a work site to provide labor for a
public improvement contract after the employee tested positive for
drugs or alcohol, and again after the employee returns to that site
to provide labor under that contract, as required by either the
employer, construction manager, construction manager at risk,
design-build firm, or conditions in the contract.

(c)
Use the following types of tests when conducting a test on an
employee under the conditions described in division (B)(2)(b) of this
section:

(i)
Drug and alcohol testing that uses the federal testing model that the
administrator has incorporated into the bureau's drug-free workplace
program;

(ii)
Testing to determine whether the concentration of alcohol on an
employee's breath is equal to or in excess of the level specified in
division (A)(1)(d) or (h) of section 4511.19 of the Revised Code,
which is obtained through an evidentiary breath test conducted by a
breath alcohol technician using breath testing equipment that meets
standards established by the United States department of
transportation, or, if such technician and equipment are unavailable,
a blood test may be used to determine whether the concentration of
alcohol in an employee's blood is equal to or in excess of the level
specified in division (A)(1)(b) or (f) of section 4511.19 of the
Revised Code.

(d)
Require all employees to receive at least one hour of training that
increases awareness of and attempts to deter substance
abuse

use

and
supplies information about employee assistance to deal with substance

abuse

use

problems,
and require all supervisors to receive one additional hour of
training in skill building to teach a supervisor how to observe and
document employee behavior and intervene when reasonable suspicion
exists of substance use;

(e)
Require all supervisors and employees to receive the training
described in division (B)(2)(d) of this section before work for a
public improvement contract commences or during the term of a public
improvement contract;

(f)
Require that the training described in division (B)(2)(d) of this
section be provided using material prepared by an individual who has
credentials or experience in substance
abuse

use

training;

(g)
Assist employees by providing, at a minimum, a list of community
resources from which an employee may obtain help with substance
abuse

use

problems,
except that this requirement does not preclude an employer from
having a policy that allows an employer to terminate an employee's
employment the first time the employee tests positive for drugs or
alcohol or if an employee refuses to be tested for drugs, alcohol, or
both.

(C)
Any time the United States department of health and human services
changes the federal testing model that the administrator has
incorporated into the bureau's drug-free workplace program in a
manner that allows additional or new products, protocols, procedures,
and standards in the model, the administrator may adopt rules
establishing standards to allow employers to use those additional or
new products, protocols, procedures, or standards to satisfy the
requirements of division (B)(2)(c) of this section, and the bureau
may approve an employer's drug-free workplace program that meets the
administrator's standards and the other requirements specified in
division (B)(2) of this section.

(D)
A contracting authority shall ensure that money appropriated by the
general assembly for the contracting authority's public improvement
contract or, in the case of a state institution of higher education,
the institution's financing for the public improvement contract, is
not expended unless the contractor for that contract is enrolled in
and in good standing in a drug-free workplace program described in
division (B) of this section. Prior to awarding a contract to a
bidder, a contracting authority shall verify that the bidder is
enrolled in and in good standing in such a program.

(E)
A contracting authority shall include all of the following statements
in the public improvement contract entered into between the
contracting authority and a contractor for the public improvement:

(1)
"Each contractor shall require all subcontractors with whom the
contractor is in contract for the public improvement to be enrolled
in and be in good standing in the Bureau of Workers' Compensation's
Drug-Free Workplace Program or a comparable program approved by the
Bureau that meets the requirements specified in section 153.03 of the
Revised Code prior to a subcontractor providing labor at the project
site of the public improvement."

(2)
"Each subcontractor shall require all lower-tier subcontractors
with whom the subcontractor is in contract for the public improvement
to be enrolled in and be in good standing in the Bureau of Workers'
Compensation's Drug-Free Workplace Program or a comparable program
approved by the Bureau that meets the requirements specified in
section 153.03 of the Revised Code prior to a lower-tier
subcontractor providing labor at the project site of the public
improvement."

(3)
"Failure of a contractor to require a subcontractor to be
enrolled in and be in good standing in the Bureau of Workers'
Compensation's Drug-Free Workplace Program or a comparable program
approved by the Bureau that meets the requirements specified in
section 153.03 of the Revised Code prior to the time that the
subcontractor provides labor at the project site will result in the
contractor being found in breach of the contract and that breach
shall be used in the responsibility analysis of that contractor or
the subcontractor who was not enrolled in a program for future
contracts with the state for five years after the date of the
breach."

(4)
"Failure of a subcontractor to require a lower-tier
subcontractor to be enrolled in and be in good standing in the Bureau
of Workers' Compensation's Drug-Free Workplace Program or a
comparable program approved by the Bureau that meets the requirements
specified in section 153.03 of the Revised Code prior to the time
that the lower-tier subcontractor provides labor at the project site
will result in the subcontractor being found in breach of the
contract and that breach shall be used in the responsibility analysis
of that subcontractor or the lower-tier subcontractor who was not
enrolled in a program for future contracts with the state for five
years after the date of the breach."

(F)
In the event a construction manager, construction manager at risk, or
design-build firm intends and is authorized to provide labor for a
public improvement contract, a contracting authority shall verify,
prior to awarding a contract for construction management services or
design-build services, that the construction manager, construction
manager at risk, or design-build firm was enrolled in and in good
standing in a drug-free workplace program described in division (B)
of this section prior to entering into the public improvement
contract. The contracting authority shall not award a contract for
construction manager services or design-build services if the
construction manager, construction manager at risk, or design-build
firm is not enrolled in or in good standing in such a program.

Sec.
4123.221.
With
respect to the bureau of workers' compensation drug free workplace
program established under section 4123.346 of the Revised Code, the
administrator shall do all of the following:

(A)
Prepare a report that includes information regarding the program;

(B)
Submit the report to the general assembly not later than the first
day of June of each year;

(C)
Include in the report all of the following information regarding the
program:

(1)
The number of employers that participated in the program during the
preceding year;

(2)
The per cent change in the number of employers that participated in
the program from year to year during the preceding biennium;

(3)
The number of drug tests on which employees tested positive that were
reported to the administrator by employers that participated in the
program during the preceding year;

(4)
The per cent change in the number of reports of positive drug tests
from year to year during the preceding biennium;

(5)
Information regarding each type of substance detected by positive
drug tests reported to the administrator during the preceding year;

(6)
The amount of each substance detected represented as a percentage of
the total number of positive drug tests reported to the administrator
during the preceding year;

(7)
Information regarding the expenses incurred by the administrator in
administering the program during the preceding year.

Sec.
4123.346.
(A)
As used in this section:

(1)
"Advanced program level" means a component of the bureau of
workers' compensation drug free workplace program that, in addition
to including all of the requirements of a basic program level,
requires a participating employer to do all of the following:

(a)
Conduct random drug testing of at least fifteen per cent of the
employer's employees each program period;

(b)
Ensure its written policy required under division (A)(2)(a) of this
section addresses random drug testing and employee assistance;

(c)
Provide and pay the cost for substance assessments for the employer's
employees, as needed;

(d)
Agree not to discharge from employment an employee who tests positive
on a drug test for the first time, who indicates the employee has a
substance use problem, or who is referred by a supervisor for a
substance assessment and who agrees to participate in the assessment.

(2)
"Basic program level" means a component of the bureau of
workers' compensation drug free workplace program that requires a
participating employer to do all of the following:

(a)
Adopt a written policy described under division (B)(2) of section
4123.347 of the Revised Code;

(b)
Require the employer's employees to complete the annual employee
training described under division (B)(3) of section 4123.347 of the
Revised Code;

(c)
Require the employer's supervisors to complete the annual supervisor
skill-building training described under division (B)(4) of section
4123.347 the Revised Code;

(d)
Implement an employee assistance plan;

(e)
Conduct employee drug and alcohol testing that occurs before
employment, after an accident, after reasonable suspicion, and on
return to duty.

(3)
"Comparable program" means a program described in section
153.03 of the Revised Code.

(B)
The administrator of workers' compensation shall do all of the
following:

(1)
Not later than one hundred eighty days after the effective date of
this section, establish a bureau of workers' compensation drug free
workplace program that offers a discount on premium rates for an
employer that participates in and complies with the requirements of a
basic program level, advanced program level, or comparable program;

(2)
Name the program the bureau of workers' compensation drug free
workplace program;

(3)
Calculate the discount using a multiplier listed under division (C)
of this section.

(C)
For purposes of calculating a premium discount under division (B) of
this section, the administrator shall use the following multipliers
for the calculation:

(1)
For an employer participating in a comparable program, five per cent;

(2)
For an employer participating in a basic program level, ten per cent;

(3)
For an employer participating in an advanced program level, fifteen
per cent.

Sec.
4123.347.
(A)
Other than the bureau of workers' compensation drug free workplace
program established under section 4123.346 of the Revised Code, the
administrator of workers' compensation shall not establish any other
drug free workplace program that incentivizes a participating
employer to create a drug free workplace.

(B)
With respect to each employer participating in the bureau of workers'
compensation drug free workplace program established under section
4123.346 of the Revised Code, the administrator shall do all of the
following:

(1)
Permit the employer to combine a discount the employer receives on
premium rates by participating in the program with a discount
available under any other loss prevention or workplace safety program
established by the administrator;

(2)
Require the employer to adopt a written substance use policy that
specifies the employer's expectation that no employee be at work with
alcohol or any drug in the employee's system and the consequences for
violating the policy;

(3)
Require the employer to require its employees to complete at least
one hour of annual training to deter substance use and to provide
information regarding employee assistance for substance use problems;

(4)
Require the employer to require its supervisors to complete an annual
two-hour supervisor skill-building training to educate them on how to
enforce the employer's written substance use policy and how to
observe and document employee behavior and intervene if reasonable
suspicion exists of substance use;

(5)
Permit a supervisor to conduct the supervisor skill-building training
if the supervisor completes a training program developed by the
administrator that educates the supervisor on how to conduct the
supervisor skill-building training;

(6)
Require each vendor contracted with the administrator to develop the
education and training materials used in connection with the training
described under divisions (B)(3) to (5) of this section to update the
materials annually.

(C)
The education and training materials described under division (B)(6)
of this section shall be updated to reflect the best practices that
exist at the time they are updated in preventing workplace accidents
and injuries attributed to the use of alcohol and drugs. If the
administrator develops the materials, the administrator shall update
the materials annually in accordance with this division.

Section
2.
That
existing section 153.03 of the Revised Code is hereby repealed.