Weed law gives employers unnecessary recourse

General Business

Adult recreational cannabis is now legal in New Jersey and with it begins a new challenge for employers looking to maintain a drug-free work environment. To help businesses navigate this new landscape, NJBIA recently held a seminar on how employers can keep workplaces safe.

The new law not only legalizes recreational cannabis for adults, it also limits an employer’s right to take employment action against workers who fail a cannabis drug test. Testing must be done by Certified Workplace Impairment Recognition (WIRE) experts who are also required to do a physical examination to determine the impairment. A failed cannabis test alone is not enough to fire an employee.

As if this new regulatory burdenen was not enough, the Cannabis Regulatory Commission has yet to pass regulations to certify WIREs. So while the law requires WIREs, the CRC’s failure to provide for their certification leaves employers with a new requirement and a remedy they cannot use.

So how do employers protect the workplace from employees impaired by cannabis? Our panel of legal, security and HR experts were quick to point out that disability issues are nothing new.

Up to one in seven adults have used cannabis in the past 30 days, enough to have them fail a drug test because cannabis stays in a person’s system long after they’ve consumed it. A failed drug test does not necessarily mean an employee is impaired.

Our panelists all advocated for employers to take a holistic approach, in particular to security sensitive jobs. Establish policies on the use of cannabis and other drugs and update existing policies. Experts have also suggested employers investigate a cognitive impairment test to see if an employee is “fit for duty”.

Several technological solutions, including a cognitive testing mobile app, were discussed and may be useful in determining whether employees are impaired, whether due to drugs, fatigue, stress or other causes that prevent them from work safely.

Employers were also asked to work with tinsurance company to ensure that their business is adequately protected. Given the uncertainty surrounding cannabis testing, it is best to have sufficient coverage and establish protocols to consistently respond to accidents and determine worker incapacity.

The legalization of recreational cannabis poses greater challenges to maintaining workplace safety. Having the right policies and procedures in place can minimize these risks.

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