Though weed is legal in New Jersey, companies can still fire their employees for being impaired on the clock.
Earlier this month, the state Cannabis Regulatory Commission released guidelines to help businesses deal with employees suspected of impairment.
Companies are allowed to screen employees for weed, but they aren’t allowed to fire people just because they fail a simple drug test. The commission said employers also have to provide substantiated evidence of possible impairment by completing a “Reasonable Suspicion Observation Report.”
Employees or third-party contractors certified to observe symptoms of impairment would be in charge of monitoring employees’ behavior and writing the report.
Commission chair Dianna Houenou said the guidelines expand upon broader existing workplace impairment guidelines, and that employers have the flexibility to add further guidance beyond what is in the sample Reasonable Suspicion Observation Report.
“The guidance that we issued is a starting point for employers who are trying to understand how they can manage concerns about employees’ potential impairment at work,” Houenou said.
“The guidance tries to offer an example of how employers can approach these questions. And it does so while trying to strike a balance between an employer’s right and obligation to operate a safe working workplace and employees’ rights to privacy and due process,” she said.
Houenou stated that finding the balance between employers’ and employees’ rights has been a challenging task for the commission.
“The challenges are acknowledging the fact that we don’t have, at present, a reliable, prevalent way to have a reliable accessible way to identify impairment from cannabis,” Houenou said. “Because cannabis can be found in someone’s bodily fluids long after they’ve used it, we want to make sure that people aren’t being penalized unfairly for behavior that they have legally engaged in, during their personal free time.”
According to the commission, the guidance impacts most businesses in the state, not just those in the cannabis industry.
In a statement Tuesday afternoon, Sen. Anthony Bucco (R-Morris) said the workplace safety guidance “fell short of delivering the specifics New Jersey employers need.”
“Essentially, the Commission’s announcement on workplace impairment advises employers to treat cannabis like alcohol,” Bucco said. “All they issued is some limited interim guidance that still leaves employers without the rules they need to keep workers safe.
“The longer this confusion goes on, the likelihood of litigation due to enforcement increases. Employers need something definitive – a final decision about how companies should proceed and what they can and cannot do to keep the workforce safe without violating workers’ rights to privacy,” Bucco added.
In the 2020 general election, New Jersey residents overwhelmingly voted to legalize recreational cannabis for adults ages 21 and older. It took about 18 months for the market to open in April.