Cannabis Use – Employer and Employee Rights

The decriminalization and legalization of recreational cannabis use has set up battle lines in New Jersey workplaces between employers’ need to maintain workplace safety and productivity and employees’ rights to engage in lawful off-the-clock activity. Each side has reasonable goals and interests and yet resolution of workplace disputes arising from cannabis issues are difficult, if not impossible, because available drug tests cannot distinguish between current usage and usage that has occurred days or even weeks ago, and there is no scientifically reliable means of ascertaining whether anyone is currently impaired by cannabis use. While the legislature has approved the use of Workplace Impairment Recognition Experts (WIREs), little guidance has been provided in terms of what qualifications, standards, tools, or guidelines they will use to make determinations about current impairment, or those determinations can and will be challenged. To make matters worse, employers who take adverse actions against employees for cannabis use run the risk of also running afoul of the Law Against Discrimination’s requirement that employers reasonably accommodate disabled employees’ use of cannabis under a doctor’s guidance consistent with the Compassionate Use Medical Marijuana Act. 

While there is little available case law addressing these issues, the body of law is certain to grow as employers begin to face difficult decisions and employees experience adverse employment actions for lawful off-the-clock conduct or, worse, following doctors’ orders.

Our esteemed panel of employment practitioners from both sides of the bar will describe the developing regulatory framework and discuss measures that can be implemented to minimize the risk to employers and employees alike. 

Our valuable and compelling subject matter will include:

• The employment-related provisions of New Jersey’s Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (“CREAMMA”), including, but not limited to, when and under what circumstances employers can drug test potential and actual employees as well as what actions employers can take as the result of positive drug test results;
• The New Jersey Cannabis Regulatory Commission Guidance on “Workplace Impairment”;
• The science of cannabis metabolization and how it is different from other intoxicating and psychoactive substances such as alcohol;
• Available testing methods for cannabis and their limitations;
• The difficulties of determining impairment;
• The manner in which adverse actions related to cannabis use can run afoul of employees’ privacy interests and the New Jersey Law Against Discrimination;
• The state of the WIRE certification process; and
• Commonsense approaches to successfully dealing with difficult and often very subjective workplace impairment issues.