Cannabis in the Workplace

To test or not to test? With the legalization of marijuana in New Jersey, it is important to be aware of how this may affect your employees and workforce. Traditional policies regarding drug testing and Zero Tolerance need to be examined to ensure that employers are not discriminating against patients who are using marijuana in a newly legal way.

Employers and business owners must be aware of these changes and how cannabis in the workplace will affect their business going forward.

Drug Tests

It varies from state to state whether or not a positive marijuana test can be used as grounds to refuse to hire a worker or as discipline for a current employee.  While some jurisdictions like New York City and Philadelphia have prohibited pre-employment drug testing for marijuana, New Jersey has yet to pass any laws regulation or restricting an employer’s ability to require drug testing before hiring a new employee. The Supreme Court of New Jersey ruled on drug testing in Hennessey v. Coastal Eagle Point Oil Co. regarding private employment. They found that it must be weighed on a case-by-case basis seeing that the responsibilities of the employee’s role would play a large role in whether or not drug tests should be required.

However, this does not mean that employers cannot get into any legal trouble for drug testing employees. There are four legal claims that employers should be aware of to help prevent themselves and their business from getting into a sticky situation:

  • Disability discrimination. The Americans with Disabilities Act prohibits discrimination against individuals with disabilities in all areas of public life; including those who are taking medication for a disability.
  • Other forms of discrimination; race, gender, age, etc. If an employer singles out a specific group of people to be drug tested, they could face a discrimination claim.
  • Invasion of privacy. The way in which the drug test is required to be conducted can bring up issues regarding invasions of privacy.
  • Defamation. In the case of a false positive, it is important for employers to not publicize drug tests results or they may be faced with a legal claim of defamation.

Zero Tolerance Marijuana Policies

The legal shifts regarding medical and recreational marijuana have brought up questions for employers with Zero Tolerance Marijuana/Drug Policies in the workplace. Now, the law protects employees from “adverse employment actions” for the use of cannabis during off/non-working hours. It also restricts employer’s from taking action against an employee directly from one positive marijuana test.

Employers are still able to carry a Zero Tolerance Policy in the workplace and during work hours, but this may no longer restrict lawful use of cannabis outside of the workplace during non-working hours, assuming that employees will not show up to their place of employment with or under the influence of cannabis.

Exempt Employers

While these new laws will allow many employees to utilize cannabis products in their personal time, this is not the case for all employees. Some jobs are consider exempt based on the responsibilities of the role. These positions include manufacturing, construction, utilities, transportation, mining, healthcare, social services, educational services, justice, public order, safety, national security, and international affairs. These roles are considered exempt for safety purposes. It is important to keep in mind that just because your role in the business is considered exempt does not mean that everyone at your business is.

New Jersey’s Workplace Impairment Guidance for Cannabis in the Workplace

In September 2022, the New Jersey Cannabis Regulatory Commission (NJ-CRC) released long-awaited guidance for employers on how to address and handle suspected marijuana impairment within the workplace. The NJ-CRC aims to strike a balance as, while employees have the right to consume cannabis or cannabis products off-hours in their personal time, employers have the right to uphold a drug-free workplace. Since traces of cannabis is a drug that can remain in users for a long period of time, guidance was needed since a positive drug test alone should not warrant the termination of an employee.

The NJ Workplace Impairment Guidance sets forth the following standards for New Jersey employers:

  • A designated Workplace Impairment Recognition Expert (WIRE) may be a trained and certified employee or can be a third-party contractor for the business.
  • An employee cannot be subject to adverse action by an employer solely due to a positive cannabis drug test.
  • However, a positive test combined with evidence-based documentation of evidence or physical signs of impairment during work hours may be sufficient for adverse employment action.
  • An employer can require an employee to undergo a drug test and can complete a Reasonable Suspicion Behavior report if the employee (1) shows observable signs of impairment,  (2) is reasonably suspected of usage of cannabis or cannabis products during work performance, (3) following a work-related accident that is under investigation by the employer, or (4) as part of a random drug test program enforced by the employer.

Employers can click here to download a Reasonable Suspicion Observed Behavior Report sample PDF template provided by the NJ-CRC.

HR Support in the Era of Legalization

As of publication, marijuana is legal in 38 states. Handling workforce matters tied to legalization is a fairly new HR topic for many small businesses. If you don’t have an HR professional, keep in mind that Abacus Payroll’s Mineral HR Platform has pre-made templates, policies, and guides that can provide you with accurate information based on your state. Here is an example of resources available with the Mineral HR subscription, starting at $12.50 per month:

  • State-specific laws on cannabis safety, background checks, drug and alcohol testing and examinations
  • “Cannabis and the Workplace” Webinar recording
  • A PDF Guide on Cannabis Laws Affecting Employers: State Laws and Employer Guidance
  • An article Guide to Drug Testing and Drug-Free Workplaces in the Era of “Legal” Marijuana
  • Recent news articles on employment law updates and when states announce legalization measures
  • More being added as this is an ongoing development

If you are still unsure of how the legalization of marijuana will affect your employees and your business, contact an Abacus Payroll advisor today.

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