“Even the most well-intentioned employees and employers might get caught up in this.”
By Sophie Nieto-Muñoz, New Jersey Monitor
The workplace guidelines released by the state agency overseeing cannabis has employers dazed and confused over what they can do to discipline a worker who might be high on the job.
Cannabis law experts and employment attorneys called the rules and their rollout vague and baffling, and said the suggestions outlined are impractical to implement and keep businesses in a “state of limbo.”
“I see a lot of risk from both the employer and the employees’ side that’s a little concerning,” said Sean Sanders, a Pine Brook-based employment attorney at Frier Levitt.
Earlier this month, the Cannabis Regulatory Commission issued interim guidance while it continues to develop more permanent regulations to certify workplace impairment experts, known as WIREs, regulations that are required by the marijuana legalization law. Since legalization, employees can no longer be terminated solely because of a drug test positive for marijuana.
The interim guidelines allow employers to use an observation report form issued by the agency, which, when used in conjunction with a positive drug test for marijuana, could be sufficient for firing. Employers can use a third-party contractor to assist with impairment observations, or another staff member who is sufficiently trained to catch the signs of impairment.
Dianna Houenou, chair of the Cannabis Regulatory Commission, said the new guidelines likely capture what many employers are already doing and have been doing since before legalization. The commission does not receive the form or dictate what employers should do after observing impairment, and companies adhere to their own personnel policies on what to do with the forms next.
“We want to make sure we’re striking a balance between employers’ rights and employees’ rights to due process, but the guidance doesn’t actually do anything new,” she said. “It’s actually the process that many employers are using to identify any impairment among employees.”
But lawyers and business leaders who have been awaiting the guidelines were unimpressed and frustrated with what the commission released—nearly five months after the industry’s launch and nearly two years since voters approved cannabis legalization.
“The concern is, how do we do this? That’s the biggest question, and I wish the CRC guidance would give us a little bit more, no pun intended, guidance,” said Tracy Armstrong, an employment lawyer at Wilentz, Goldman & Spitzer, who serves on the New Jersey State Bar Association’s cannabis law committee.
Armstrong’s biggest qualm is that the guidelines lack definitions and explanations for how employers can implement these regulations in the real world.
A client called her last week asking what kind of third-party contractor they can hire to keep an eye on staff that could be high on the job. She said she didn’t know where to begin to try to find one because the guidance isn’t that specific.
She suggested the client look at taking impairment training classes so a staffer can be trained — but she’s not even completely sure what would fall under the Cannabis Regulatory Commission’s standard of sufficiently qualified.
“How do you say that this employee has to be ‘sufficiently trained and qualified,’ and not even tell us what that means? To me, that is not guidance. That is not helpful,” she said.
Sanders represents hospitals, pharmacies, and doctor’s offices, which all fall under the safety sector and need to prioritize what’s best for the patient. He said he’s advising his clients to be wary when filling out the form.
The form lists dozens of signs of physical and behavioral impairment: red, swollen eyes; sniffling nose; heavy breathing; a marijuana odor; rambling speech; looking confused; excessive yawning, and more. But some of these signs can also be due to allergies or medication, or even someone having a bad day.
“You don’t want to be targeting your employees who look depressed, and certainly you don’t want to be documenting it,” he said. “That brings up a whole ‘nother can of worms with the Law Against Discrimination.”
Critics also questioned the effectiveness of having a third-party contractor come in to observe someone potentially under the influence. Unless a company can afford to have someone on staff at all times, employers would have to call someone who may not arrive immediately, and the effects of cannabis may only last a few hours.
And employers could still be open to lawsuits—while the Cannabis Regulatory Commission suggests an observation form in conjunction with a positive THC test may be enough to terminate someone, the attorneys noted that cannabinoids can be present in someone’s system for four weeks.
“Even the most well-intentioned employees and employers might get caught up in this,” Sanders said.
When asked how employers can implement third-party contractors in their workplace, Houenou conceded the “answer to that question hasn’t been settled yet, but it’s a valid consideration.”
She also didn’t say why the commission took months to release these interim guidelines or what the delay is on WIREs certification. She said those regulations are still being developed, and the commission is being careful to “ensure we’re doing this right.”
Sanders said until the WIREs training is developed by New Jersey State Police, he sees employers taking increased risks in executing the commission’s guidance and potentially weighing which law to comply with—anti-discrimination or employment rights statutes—since they could contradict each other.
“It’s growing pains that typically happen when new legislation comes out. It’s just that this one in particular tends to affect every one employer in our state,” he said.
Armstrong pointed to legislation that could address some of the questions surrounding which industries can terminate workers for testing positive for cannabis and direct the State Police to review and approve standards for WIREs certification. The bill, A890, hasn’t been heard by a legislative committee and does not have a companion bill in the state Senate.
She said she believes that ultimately, the guidance will be resolved through legislation or case law as it’s tested by employers in the coming months.
“Do I have faith it’ll be resolved? Yes,” Armstong said. “Do I have faith it’ll be resolved quickly? Probably not.”
Photo courtesy of Mike Latimer.