On September 9, the NJ Cannabis Regulatory Commission announced an update to help provide guidance to employers regarding regulations of marijuana use in the workplace.
While an employee cannot be fired for testing positive for weed, employers have the right to maintain a drug-free workplace and to let go of someone if they have proven to be under the influence during work hours. Drug tests can find traces of evidence of THC up to 4 weeks after the initial use and long after the effects have worn off. So while a positive drug test may not be grounds for termination, an employer still has the right to test if an employee is showing signs of being under the influence during the work day that may result in termination.
Cannabis in the Workplace
The legalization of cannabis has allowed for employers to test their current and potential employees for marijuana usage. Employers are able to enforce a drug-free work environment, regardless of the legalization, as cannabis is being seen as alcohol is typically in the workplace. Therefore, while employees may be able to use recreational cannabis in their free-time, they are not allowed to utilize the drug during work hours or still be under-the-influence while at work. However, this has proven difficult for employers to test and enforce seeing that cannabis can show up in a drug test for up to four weeks after the initial consumption. So while an employee may be testing positive, it does not mean that they used marijuana that day or that they are still feeling the effects of it.
What Can Employers Do
While a positive test may not be the best way to determine if employees are breaking company rules, there are other methods of testing that can help determine if an employee is utilizing cannabis in the workplace.
Per the NJ-CRC, employers can hire a third-party contractor as a staff member to assist with observing suspected cannabis usage in the office or Workplace Impairment Recognition Experts (WIREs) to detect employee impairment. Employers can also use cognitive impairment tests or ocular scans to test the soberness of their employees. While breaking the company policy is one thing, operating heavy machinery or trying to manage important work tasks while impaired may be extremely dangerous to coworkers and/or clients. It is important that employees are not under-the-influence during working hours.
The guidance and “Reasonable Suspicion Observation Report Form” issued by NJ-CRC is meant to support employers right to create and maintain safe work environments, and to affirm employees’ right to due process. If an employee is showing signs or behaving in a way that shows that they may be under-the-influence while on the clock, the employer has the right to fill out the “Reasonable Suspicion Observation Report Form” detailing the employee in question and their specific behaviors that have led to the suspicion of being under-the-influence.
Managing a business along with a full staff of employees can be challenging, especially with the continuously changing laws. If you are unsure of your employees’ marijuana usage and whether or not it is affecting their productivity at work, make sure that your staff is aware of the “Reasonable Suspicion Observation Report Form” and where to find it in the office. Maintaining open and honest communication with your staff along with providing the options to properly handle a challenging situation with a coworker is crucial for a successful work environment. If you have any questions about how this update may affect your staff and your business, contact an Abacus Payroll advisor today.
DISCLAIMER: The purpose of this guidance is to clarify and explain the NJ-CRC’s understanding of the
existing legal requirements under the governing law. This guidance does not impose any additional
requirements that are not included in the law and does not establish additional rights for any person or entity.
Please note, however, that adverse employment actions may impact employees’ protected rights under
various laws including, but not limited to, state and federal anti-discrimination laws. When incorporating this
guidance, employers should ensure compliance with all state and federal employment laws.