It is not uncommon for dealerships to have mandatory post-injury drug testing policies. However, OSHA’s new “Reasonable Reporting Procedure” rules may require a second look at such policies.
These OSHA rules have non-retaliation provisions that prohibit any adverse action that could deter an employee from reporting a work-related illness or injury. The rules further indicate that mandatory post-injury drug testing policies may be retaliatory because such policies could deter reporting of injuries. As such, the rules seek to limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and the drug test can identify impairment caused by the drug use. For example, the rules state that it would not be permissible to drug test in the case of a bee sting, a machine or tool malfunction, or a repetitive strain injury, as such incidents are not potentially caused by drug use.
These rules have been met with some controversy, including a lawsuit that has challenged the non-retaliation provisions. Accordingly, enforcement of the rules has been delayed until at least November 1st so that further guidance can be issued. Dealerships should watch for updates on this issue and consider revising their drug testing policies to comport with the new standards, with the assistance of counsel.