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Employer's responsibility for employee on drugs 
March 30,  2022
Employer's responsibility for employee on drugs 
          I have a question about cannabis. My understanding is that when you test for cannabis it stays in a person's system for 30 days.  As it is being legalized, as in New Jersey, what is an employer's liability, in terms of things such as driving, and workman's compensation?
Name withheld
          The legalization of Pot isn't going to change employment law much.  Drugs, legal or not, that interfere with an employee's performance is a problem for both employee and employer.  As a general rule an employer is responsible for the acts of the employee while acting within the scope of the employee's employment.  As employer you are responsible for your employee's negligence, whether it involves driving for work, performing labor and services or interacting with customers and suppliers. 
          Drugs, many kinds of drugs, including Pot and alcohol, impair performance.  So do many prescription drugs used for a plethora of reasons by people to manage pain and other health conditions.  It's not the presence of the drugs in the system that conclusively establishes negligence, but the act and performance causing the damage or injury.  If a person is found to be impaired, by any drug or any other reason, there may arise a strong suspicion, if not legal presumption, that the drug induced impairment caused or contributed to the negligence [which can be defined as departure from reasonable conduct and performance].  It may turn out that a Pot-head or drunk employee who gets into a car accident was not really at fault [maybe rear-ended while sitting at a red light], but in questionable scenarios the impaired employee will have to overcome a presumption of fault in all likelihood. 
          So what is an employer supposed to do?  Drug testing, while legal, may not be the answer because drug addiction in and of itself is not a litmus test for discharge, and in fact your drug addict employee may have employment rights as a disabled person; drug addiction is a disability and as with all disabled employees an employer is required not to discriminate and to make accommodations if possible. 
          Here's a tricky slope to consider.  Your employee is a problem, or maybe you just don't like the employee anymore, or ever for that matter.  Especially if you use an Employment Agreement with "at will" employment you can terminate the employee at any time and for any or no reason; no explanation is required.  But, if you test the employee and find drugs you may now be on notice of that employee's addiction and disability.  That employee may now be entitled to be treated as disabled and you will be required to accommodate if possible.  Each situation and employee will need to be handled differently and carefully. 
           K&K does have an Employment Law department, and it's available to you for consult and engagement.  Just reach out to me and I'll connect you.  Make sure you're sober when calling.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301