Employer Workplace Challenges to Arise Amid Cannabis Legalization
Legislation passed by the House of Representatives in December that would federally decriminalize cannabis, combined with a decision by voters in New Jersey to legalize adult-use cannabis, could open the door to employer challenges, said Tracy A. Armstrong, Esq., shareholder at Wilentz, Goldman & Spitzer, P.A., during an NJCPA webinar last week.
The Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, which has yet to pass the Senate, removes marijuana from the list of scheduled substances under the federal Controlled Substances Act and allows for sentences related to cannabis offenses to be revoked. Hemp, cannabidiol (CBD) and cannabis, she explained, “are legal if they have less than 0.3 percent of delta-9-tetrahydrocannabinol (THC). When you get over 0.3 percent, they no longer become legal.”
New Jersey’s referendum, where the majority of voters agreed to decriminalize cannabis, should be in effect as of Jan. 1, but she explains, “The problem becomes answering the question, ‘is it now legal?’ The answer is a definite maybe.” The reason? “Our legislature has been working on enabling legislation that would effectuate the referendum. It’s been passed; but unfortunately, it has not been signed. As of right now, technically the criminalization of marijuana is still on the books. One of the hurdles, as it were, is the consequence of underage use,” she noted, which is currently being discussed by Governor Murphy.
Going forward, New Jersey employers, according to Armstrong, could have many considerations regarding the testing of employees and whether there is medicinal use involved. Employers cannot simply randomly test staff for the use of cannabis; instead, they need a condition of pre-employment, an actual suspicion that a staffer is coming to work under the influence or the staffer holds a safety-sensitive job, such as a pilot, she said.
If such an employee has a medicinal reason for the cannabis usage, they have to present that documentation. In this case, she explains, “A valid explanation for the positive test result may include an authorization for medical cannabis issued by a health care practitioner or proof of registration with the Medical Marijuana Commission.”
Testing can be tricky for employers since a positive drug test does not equate to current usage. Due to the nature of the drug remaining in one’s system, there is no way to tell if the person used cannabis weeks ago. “Marijuana has lingering effects in the system,” she said, noting “that is troublesome and difficult when you are talking about drug testing.” From a current testing standpoint, she explained, employers will not be able to tell if someone used it a week ago or just prior to coming to work that day. “It’s not like alcohol, where someone can blow into a breathalyzer.”
Even if a test result is positive, employers still need to jump through hoops to follow proper guidelines. For example, the employer has to give the employee an opportunity to provide an explanation for the positive test result. The employee can also ask for a retest. Employers, however, will have to make hard decisions over employee compliance especially if they do not want to violate the federal law, lose any federal funding or suffer the loss of any licensing-related benefits.
The bottom line, she explains, is employees are not allowed to come to work impaired by cannabis or any other substance. However, as an employer, “You have to be careful you don’t get overly concerned with medical marijuana at night. If appropriately used, it does not impair an employee,” she explained.
- Stay up to date on the laws surrounding the legalization of cannabis in New Jersey at njcpa.org/cannabis.
- NJCPA members interested in serving cannabis clients or staying up to date on accounting, tax and other issues for cannabis businesses can join the NJCPA Cannabis Interest Group at njcpa.org/groups.