Dairy farmers across the country are having trouble sourcing good labor. Many are starting to drug test for a variety of reasons like workplace safety and productivity, according to Holley Courtney of Michael Best & Friedrich.
“We recommend that employers who tests for drugs, have a written policy,” she says. “The policy should be reviewed for compliance with applicable law.”
Here are five things farmer should consider when developing a drug testing policy.
1. Does your state have a drug testing statute?
The first thing employers should consider is whether their employees are working in a state that has a drug testing statute, Courtney says. “Some statutes are voluntary and provide certain benefits to employers for compliance, such as a premium discount on worker’s compensation,” she says. “Other states have mandatory statutes that limit the circumstances employers can test and/or place restrictions on the methods of testing.” While some states have strict rules, including an employer’s inability to terminate employees on their first failed drug test, some states have no drug testing laws at all.
2. When will you drug test?
Employers should also consider when they will test, says Courtney. “Will you use applicant testing, reasonable suspicion testing, post-accident testing or random testing?” she asks. Farmers should keep in mind not all states allow random testing and several place limitations on post-accident testing.
3. Use Proper Testing Procedures
Farmers should confirm their drug testing procedures comply with the law, Courtney advises. “Some laws place restrictions on the type of specimen collection (e.g., blood, urine, breathalyzer),” she says. “Some states require that testing be done at a licensed lab rather than on-site and some limit which drugs can be tested for.”
4. Drug Test Consequences
According to Courtney, employers should also consider the consequence for a failed drug test, such as discipline or termination. “Most states permit employers to fire employees for a failed drug test,” she says. “However, some states, such as Minnesota, prohibit employers from automatically firing employees for their first failed drug test.”
In addition, farmers should consider how marijuana should be handled. “With the continued proliferation of marijuana legislation, employers may face additional challenges,” Courtney says. “Marijuana is a Schedule I Controlled Substance and therefore still illegal under federal law. However, more than 30 states have passed some type of medical marijuana legislation.”
She says some courts in states that have legalized medical marijuana use have held that employers may discipline employees who test positive for marijuana but a recent case shows otherwise. “[In that case] the court held that the employer may need to make an exception to its drug-free workplace policy to permit the employee to use marijuana off-site under Maryland’s anti-discrimination statute.”