Recreational marijuana went on sale in New Jersey on April 21st 2022, ushering in a new age for the business community. While much is known about what business owners and employees can and cannot do, the Cannabis Regulatory Commission is still working out enforcement standards.
The law, known as CREAMMA (Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act) offers ample protection for employees, essentially creating a new class of protected workers—recreational marijuana users.
What does that mean for employers?
- Your rights and obligations to keep a safe and drug-free workplace haven’t changed.
- The law lets you ban the use or possession of marijuana in the workplace or during the performance of the job.
- You are permitted to test for marijuana both pre-employment and while employees are on the job.
However, if you suspect that an individual is high from marijuana use while performing their duties or during work hours, it will be very difficult to prove. You also cannot fire or discipline someone solely on the basis of a positive test. Also, a positive marijuana test cannot be the sole reason you decide not to hire an individual.
The issue was the subject of a recent NJBIA seminar, “Your Business and Cannabis: It’s Complicated.” Panelists discussed the Catch 22 situation: businesses cannot discriminate against employees who use marijuana off-the-clock, but because cannabis stays in your system for days, it’s difficult to prove if a person is currently impaired or if they used it several days ago.
Employers may require a drug test as part of a pre-employment screening. You may also screen current employees to determine drug use during working hours. The big challenge is that a test to determine real-time intoxication isn’t available.
To account for that, New Jersey legislators added a second kind of test to an employer’s obligation. In addition to the scientific test (blood, urine or saliva testing), a physical evaluation by a new type of expert is required. The expert is called a “Workplace Impairment Recognition Expert (WIRE)”: an individual who is trained and certified to detect and identify if an employee is impaired from marijuana. The WIRE must witness an employee’s impaired behavior. As of today, the state has yet to unveil how individuals can obtain a WIRE certification, so employers remain in limbo.
Employers cannot decide whether a candidate is a good fit for a job based on their use (or not) of recreational marijuana. You also cannot make a hiring decision based solely on an applicant’s arrest, charge, or conviction (juvenile included) related to marijuana or hashish (charge). It is also illegal to require an applicant to disclose any such charge.
According to the New Jersey Monitor, lawmakers in the state have introduced a series of bills to restrict the types of workers who can use recreational marijuana off the job. Among them are police officers, those who operate heavy machinery or individuals whose use of cannabis would “put the public at risk.” One of the proposed bills would make it legal again for employers to use positive marijuana drug test results as grounds to hire or fire someone.
While New Jersey is still sorting things out, it’s smart for employers to look at their employment applications, interview questions and other policies and make sure they are ready to make changes as the workplace standards for employees’ recreational marijuana use become clear.
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