New Jersey marijuana regulators have approved new guidance for employers that makes clear they cannot penalize workers based solely on positive drug tests for cannabis metabolites.
The New Jersey Cannabis Regulatory Commission (NJ-CRC) announced the workplace guidelines during a meeting on Friday, joining several other states that have implemented specific protections for people who use marijuana in compliance with state law.
These are interim policies that will be in effect as the commission “formulates and approves standards” for “Workplace Impairment Recognition Expert” (WIRE) certifications. After that point, employers may have more options available to them beyond subjective observations or traditional drug tests that detect inactive THC metabolites, which can stay in a person’s system for days or weeks after consumption.
“Although tests are improving in accuracy there is no perfect test for detecting present cannabis impairment,” NJ-CRC Executive Director Jeff Brown wrote in the new two-page guidance document. “Therefore, best practice has been for employers to establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test to verify whether or not an individual has used an impairing substance in recent history.”
Businesses in New Jersey are still able to maintain drug-free workplace policies and take action against workers who are reasonably suspected of being impaired on the job. But—with limited exceptions for positions that involve federally contract, for example—employers can no longer punish a worker or applicant just because they test positive for THC metabolites.
That doesn’t mean that cannabis drug screening is totally prohibited, however.
The guidance notes that while “a scientifically reliable objective testing method that indicates the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action,” those results can be combined with “evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours” to support an adverse employment action.
NJ-CRC provided a sample form that employers can reference or adopt when they suspect an employee of being intoxicated on duty. It lists a number of “physical signs” and “behavioral indicators” of impairment, and prompts to fill out the relevant information if they intend to submit a reasonable suspicion report.
But as a legal case out of Washington, D.C. recently illustrated, relying on certain physical and behavioral signs can be problematic. A government agency in the District was recently ordered to reinstate a worker who was terminated based on observations about eye redness and tone, as well as a positive cannabis test. The person was a registered medical marijuana patient, and she successfully appealed the termination, explaining that her eyes were red from tiredness after spending much of the day before her shift in the hospital with her family.
In that case, the appeal was soundly approved because the supervisors allowed the person to continue working even after raising the suspicion, which the administrative court determining that that decision alone demonstrated that the employers did not actually believe she was impaired to the extent that it would affect her job performance.
Back in New Jersey, the regulators explained that the new guidance reflects an interpretation of existing state statute; it’s not creating new rules. But the commission cautions 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,” it says.
In a statement, NJ-CRC Executive Director Jeff Brown said, “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. We have been doing that with alcohol without thought.”
Again, this is interim guidance as regulators finalize plans to create WIRE certifications, essentially a workplace equivalent to what are called “drug recognition experts” (DREs) in law enforcement.
Other states have carved out cannabis-related employment protections—mostly for medical marijuana patients—but there’s growing interest in enacting thoughtful, updated policies that reflect the political reality of the times.
Back in July, D.C. Mayor Muriel Bowser (D) signed a bill that bans most workplaces from firing or otherwise punishing employees for marijuana use. The reform was designed to expand on a previous measure lawmakers approved to protect local government employees against workplace discrimination due to their use of medical cannabis.
In California, lawmakers recently sent a bill to the governor’s desk that would provide broad employment protections for workers who use marijuana off the job.
After New York enacted recreational legalization, the state Department of Labor also instituted new rules stipulating that employers can no longer drug test most workers for marijuana.
Photo courtesy of Martin Alonso.