In a recent drug test webinar, it was suggested that employers keep marijuana in the drug test panel even if the state does not allow the use of a positive result for marijuana.
While the employer, in certain states, may not be legally permitted to use a positive result for marijuana, the employer can later claim that they made a good faith effort to avoid hiring a potentially unsafe worker, but the state restricted their authority in acting because of the state’s law regarding marijuana.
In a situation where an employee under the influence of marijuana causes an accident that harms another person or results in property damage, the employer may be held legally liable through the Respondeat Superior and/or negligent hiring. Respondeat Superior and negligent hiring liability exists in many states.
Negligent hiring is the concept that employers can be held liable for negligent retention when they knew or “should have known” if an employee has a reasonable propensity to injure members of the workforce or of the public. Why? Because of the concept of respondeat superior. Respondeat Superior means the injury would not have occurred had the employer not put the employee in a position of causing the injury.
By continuing to include marijuana in the drug test panel, an employer may be able to show they tried i.e., made a good faith effort, to take appropriate action but were prevented from acting by the state’s law and thus the employer should not be held liable. Rather the state should be held liable.
Our firm is not a law firm. In all situations, the advice of competent employment counsel should always be followed.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.494.0232 or Email: email@example.com or the website at randisiandassociates.com