N.J. regulators reiterate that workers can’t be fired for a positive cannabis blood test
Employers also have to document reasonable suspicion that a worker was high on the job.
New Jersey’s 2021 adult-use cannabis law specified that employers are not allowed to fire workers or suspend them based solely on a positive blood test.
That’s good for workers, who can now buy recreational weed at 19 stores in the state, because blood tests for cannabis can be positive even weeks after a person used the drug.
“Cannabis is legal here in New Jersey, so it’s important to make sure that people aren’t facing adverse actions at work for engaging in what is permissible under state law,” said Ami Kachalia, a campaign strategist for the American Civil Liberties Union of New Jersey.
But employers have been in limbo because the Cannabis Regulatory Commission hasn’t completed the regulations on how employers are supposed to detect cannabis impairment at work under the new law.
The cannabis commission took an interim step on Friday, when it issued guidance on how employers can use physical and behavioral factors, such as glassy eyes, agitated or insulting speech, or excessive yawning, to determine if an employee is impaired from cannabis use while working.
Friday’s document gives employers a path to “fairly assess impairment on the job,” said Kathleen O’Malley, a partner in Duane Morris LLP’ Cherry Hill office who specializes in employment law.
But the commission still has not issued those regulations that are supposed to establish specific criteria for certifying what are called Workplace Impairment Recognition Experts, or WIREs. That person can be on staff or work for another company.
Until those regulations come out, employers are allowed to designate an employee who is “sufficiently trained” to document behaviors that might indicate impairment, or hire an outside service to do that. “What isn’t clear from the guidance is, what does it mean to be sufficiently trained and qualified and where do you go to get that,” O’Malley said.
Courtney Knight, an associate at Freeman Mathis & Gary LLP in Cherry Hill who represents companies in employment and other matters, said the guidance appears to offer employers some flexibility, which could help with the cost to employers.
“You might have someone who has everybody in one room versus another business where you have people on the road, you have people increasingly working from home, so I think the new guidance recognizes that this needs to look different for different workplaces,” Knight said.
The commission said the guidelines support employers’ right to have safe work environments and affirm the due process rights of employees.
“Striking a balance between workplace safety and work performance and adult employees’ right to privacy and to consume cannabis during their off hours is possible,” said Jeff Brown, the cannabis commission’s executive director.