With New Jersey’s opioid and heroin epidemic continuing, some Garden State companies are making adjustments to help keep their work zones drug-free. But they also must make sure they don’t wind up getting sued.

According to Sarah Wieselthier, a workplace attorney with the firm Fisher Phillips, no specific state laws require drug testing in the workplace, but in light of today’s drug epidemic, it’s a good idea for employers to have a clearly spelled out drug-testing protocol.

“They need to have a written policy that’s distributed to employees, usually part of a handbook, which is what we do for our clients,” she said.

“The drug testing policy would set forth very clearly when the company would do a drug test, and all of the bells and whistles, so that everything is laid out in a detailed manner.”

She noted drug testing is frequently done when someone is first hired, but also there can be a "reasonable suspicion" component.

“If there is a reasonable suspicion an employee violated any rules, which may include rules on a drug-free workplace, then the employer pursuant to that policy can conduct a drug test in that regard,” she said.

Wieselthier said some companies do reserve the right to conduct a surprise drug test, but usually it is predicated upon a reasonable suspicion, which should be consistently applied within a company.

If an employee indicates they have had a drug addiction problem and they’re in a treatment program, they may legally be eligible for an accommodation under the Americans with Disabilities Act.

“In these situations, an employer may need at that point determine whether or not this individual is qualified as having a disability under the ADA,” she said. “If you are no longer engaging in the use of drugs but are undergoing a treatment program you could qualify as having a disability.”

Wieselthier explained if someone is receiving treatment, they may qualify as having what is considered to be a legal disability, because under the Americans with Disabilities Act, they are eligible for this designation “if they have a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.”

She said this means if someone is enrolled in a drug rehab program, an employer would have to look at whether “they have a physical or mental impairment that substantially limits one or more major life activities.”

If that’s the case, she says an employer may have a duty “to engage at that point in what we call the interactive process, which is essentially a discussion with the employee as to any accommodations they may need for that disability.”

That could include a leave of absence, a schedule adjustment, leaving work early to be able to attend drug treatment, or some other situation.

Simply having a drug problem doesn’t automatically mean you’re considered to have a disability under ADA guidelines, but if someone is in treatment, Wieselthier says company bosses must understand  “they may qualify as having a disability under the ADA."

She added employees who use illegal drugs may be subject to company discipline, but if they qualify for an ADA accommodation and you fire them, “now you could be liable, or be accused of discriminating against them in an unlawful manner.”

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You can contact reporter David Matthau at David.Matthau@townsquaremedia.com