Zero Tolerance Policy? Not So Fast. Proposed Cannabis bill offers Clarification and Possible Relief to Some Employers.

After much anticipation, New Jersey’s Governor Murphy signed the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” into law on February 22, 2021. While this law made adult use recreational cannabis legal, the extensive law, together with a few “clean up bills,” did a whole lot more than legalization. In hundreds of pages, this law created the broad framework for the development and regulation of the entire cannabis industry including licensing, manufacture, distribution, taxation, enforcement, as well as criminal and social justice reforms for the possession and use of cannabis. It is therefore not surprising that some issues of particular importance to employers, such as drug testing and carve-outs for certain industries, are still hazy.

Importantly, while some provisions of the law became effective immediately, the provisions governing employment and those “activities associated with the personal use of cannabis,” are not operative until the newly appointed five member Cannabis Regulatory Commission adopts initial rules and regulations. These regulations, which will interpret and instruct how the law will be implemented, are required sometime within 180 days of the law’s adoption, or by mid-August 2021.

How does recreational marijuana impact Zero Tolerance Marijuana Policies?

For employers, the law, in its current form, is significant because it both protects employees from “adverse employment actions” for the use of marijuana during non-working hours and also restricts the employer’s ability to take action against an employee based solely on a positive marijuana test.

Under the law, employers are clearly permitted to “maintain a drug and alcohol free workplace” and are not required “to permit or accommodate the use, consumption, being under the influence, possession, transfer, display, transportation, sale, or growth of cannabis or cannabis items in the workplace” Employers may continue to have zero-tolerance policies which “prohibit the use of cannabis items or intoxication by employees during work hours.”

However, the law makes equally clear that policies may not restrict the lawful use of recreational cannabis during non-working hours and such policies should not adversely impact employees who are not impaired when they show up to work or do not bring/use/display cannabis at work.

What about safety-sensitive employers?

Currently, the law does not provide any “safety-sensitive” carve-out or special exception for those employers who work in environments which might pose a specific safety risk if employees were impaired at work.

There is a limited exception for employers subject to federal requirements, such as those regulated by the U.S. Department of Transportation, if there is a “provable adverse impact on an employer subject to the requirements of a federal contract.” The law also states that it shall not be construed to amend/affect State or federal law employment matters, impact federal grants, interfere with federal contracts, or require one to violate federal law.

When can employers require Cannabis drug testing?

Employers may require a test upon a) reasonable suspicion of use of cannabis while performing work responsibilities, b) upon any “observable signs” of cannabis intoxication, or c) following a work-related accident.

The law specifically permits testing for cannabis randomly, or as part of regular screening of current employees “to determine use during an employee’s prescribed hours”. However, employers may not take any “adverse action “solely due to the presence of cannabinoids from the legal use of recreational marijuana off hours.

The goal of testing is to foster a “drug free workplace” and testing should be used to confirm current impairment while on the job. Taken in this context, the “pre-employment” screening specifically permitted under the law appears limited to testing for current impairment which occurs moments, not days or weeks, before an employee starts their shift and enters the worksite.

Should employers change their drug testing protocols?

The law currently sets forth a two-part testing regime with 1) “scientifically reliable objective testing” of “blood, urine or saliva” and 2) a physical evaluation to determine an employee’s state of impairment. The law does not mention other types of testing such as breath or hair/follicle testing.

Recall that present testing cannot determine intoxication but can only detect the presence of THC (the psychoactive compound responsible for a marijuana “high”). This complicates the goal of testing because a positive result will only indicate prior use, not current impairment. Because there is no useful correlation between THC concentration and marijuana impairment, before taking “adverse employment action” the law requires a second physical evaluation, by a certified “Workplace Impairment Recognition Expert.”

Again, the regulations which will identify the training required for certification of these impairment experts have not yet been issued and the employment provisions of the new recreational marijuana law are not currently effective until those clarifying regulations are issued by mid-August 2021.

Does the proposed Sarlo bill provide possible relief for Employers?

On March 9, 2021, Senator Sarlo introduced bill S-3525 clarifying that use of a Workplace Impairment Recognition Expert is optional by the employer and prohibiting “pre-employment” testing, a term typically used for testing days or weeks prior to the start of employment. This bill also provides a possible avenue for the exemption of certain “critical infrastructure” and construction sites with an “exceptionally high risk” of potential harm to other employees of the public via application to the Regulatory Commission, as well as exceptions for public utility, rail and law enforcement employees.

While it is uncertain whether such a bill will ultimately be adopted, many employers will continue to look for clarification in the coming months and until the implementing regulations are adopted.

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