Your dealership may have what many employers deem to be a reasonable policy for all employees: a zero-tolerance drug policy.
You likely test all new personnel for drug use before they’re hired, as well as employees who are involved in incidents resulting in injury.
You may also conduct random testing. This policy is good business, makes sense, and has been implemented by most employers.
But what makes sense to private business and industry, however, often confounds and confuses government officials. Particularly those tasked with protecting employees from sensible practices imposed by employers, but which the government believes can be used to discriminate or retaliate against employees.
In other words, what you thought was the right action all along may no longer be.
Changes from OSHA
The Occupational Safety and Health Administration (OSHA) recently amended its work-injury reporting rule, which required mandatory drug testing of employees involved in accidents resulting in injury. Most employers deemed this a sound policy.
Under the amended rule and OSHA’s interpretation of the same, however, the field you have been playing on for years in terms of testing and zero tolerance has been modified.
This is thanks to OSHA having amended 29 CFR Parts 1904 and 1902: Improve Tracking of Workplace Injuries and Illnesses.
The final rule requires employers in certain industries to electronically submit to OSHA injury and illness data.
The amended rule:
- Requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation;
- Clarifies that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and
- Incorporates the statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.
What it means
Section 1904.35 says, “You must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
The question now becomes: Does your drug testing policy deter or discourage a reasonable employee from accurately reporting a workplace injury?
Although OSHA has stated the amendments do not prohibit drug testing, the agency has determined that blanket post-injury drug testing policies deter proper injury reporting.
The new rule
So how do you need to modify your existing policy? Given the amendments, an employer must now ask and determine:
- Does my testing policy discourage an employee from reporting an injury or illness?
- Is there a reasonable possibility that employee drug use could have contributed to the reported injury or illness?
- Is a test based upon a reported illness or injury necessary to determine the cause?
What the rule creates is a lot of grey area when it comes to a drug testing policy, and what OSHA may deem reasonable, rather than retaliatory. It is important to review OSHA guidance.
OSHA guidance notes these factors for post-injury drug testing may be considered:
- A state or federal law requires a post-injury drug test.
- Whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.
- Whether other employees involved in the incident were also tested, or whether the employer only tested the employee who reported the injury or illness.
- Is the drug test capable of measuring impairment at the time the injury or illness occurred? OSHA may consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.
These are some of the major factors to consider in creating a post-injury drug testing policy. OSHA has provided some examples in its guidance that should be reviewed at:
Consider the grey area
Some other factors to remember before ordering up a test:
- Is it reasonable the illness or injury was caused by being under the influence? You will probably not test an employee complaining of carpal tunnel syndrome, for example.
- OSHA is not concerned with what your insurance carrier may require when it comes to your drug testing policy. Unless your private insurance mirrors applicable state workers’ compensation law testing requirements, OSHA will not consider carrier requirements as guiding on the issue.
- Injury and illness drug testing under a collective bargaining agreement must still pass the “reasonable” test, and not be deemed a deterrent.
Look at your injury testing policy. Make sure it does not deter injury reporting, and that absent testing required by statute, required tests are related to the cause of the injury or illness.
Given the grey area created by the amendment, do not simply rely on past practices, or what your insurance company tells you it requires.
Review your policy, have counsel determine what is state and federally mandated, and craft a policy that is reasonable under the guidelines. Injury and illness reporting is a priority for OSHA.
Don’t wait for an incident to occur before you figure out whether a post-accident test should be conducted.
David R. Missimer, [email protected], is general counsel for Automotive Compliance Consultants Inc. He spent 28 years in private practice as a litigator representing lenders, auto dealers, and numerous other entities and individuals. He has worked with dealership compliance issues since 2003 as co-founder of Automotive Compliance Consultants. He is a member of the National Association of Dealer Counsel, American Financial Services Association, and National Automotive Finance Association.0