Cannabis Regs Must Set Zero Tolerance in Safety Sensitive Jobs

By Ray Cantor, NJBIA Vice President of Government Affairs On Jun 29, 2021

Next month, the Cannabis Regulatory Commission (CRC) will roll out rules and regulations to govern the cannabis industry in New Jersey. NJBIA has been active during the public hearing process in an effort to ensure those regulations do more to protect an employer’s right to maintain safe drug-free workplaces.

Although medicinal marijuana has been legal for more than a decade, New Jersey adults gained the right to use recreational marijuana last year by voter referendum. However, voters left it up to the Legislature to determine the parameters of those rights and, unfortunately, when it came to public safety and the workplace, lawmakers came up short. 

Prior to the adoption of this law, known as the Cannabis Act, the drug was largely illegal (with some exceptions for medical cannabis) and more easily regulated in the workplace. Employers had the option of having a drug-free workplace and could enforce this standard through zero-tolerance drug testing. This testing could have been random, based on suspicion, or even pre-employment. If any cannabis was found in an employee’s system, it was grounds for disciplinary action or dismissal.  

The need for this zero-tolerance testing is especially important in safety sensitive occupations. Employers have an interest in ensuring employees are not impaired when performing certain jobs, such as crane operators working in crowded cities, truck drivers hauling hazardous chemicals, chemical plant operators, surgeons and commercial airline pilots, among many others. 

While the Cannabis Act pays lip service to allowing employers to maintain drug-free workplaces and does allow employers to ban the use of cannabis while on the job, it significantly limits the ability of an employer to enforce those restrictions. Cannabis remains in the body for days or weeks after use, making it difficult to discern if an employee with a positive test was impaired on the job or had consumed marijuana days before. 

In the past, employers have utilized policies that required no cannabis be found in a drug test in order to ensure employees are not impaired while working. When the Cannabis Act allowing recreational cannabis was debated in the Legislature, NJBIA strongly advocated for a safety-first testing policy. In other words, when deciding between the rights of an employee to consume cannabis and the need to protect other employees or the public from harm, we argued for the latter.  

However, the Legislature sided with an employee’s right to consume cannabis even if it may jeopardize safety. In place of zero-tolerance testing policies, the Cannabis Act specifically prohibits an employer from disciplining an employee solely due to a positive drug test. Rather, an employer would need to supplement that positive test with findings from a certified Workplace Impairment Recognition Expert or WIRE. WIREs are much less reliable than zero-tolerance testing and of questionable legality. 

Two bills supported by NJBIA have been introduced in the Legislature to remedy the safety issues. S-3525, sponsored by Sen. Paul Sarlo (D-36), and A-5522, sponsored by Assemblyman Brian Bergen (R-25), would restore an employer’s ability to rely on zero-tolerance testing for safety sensitive and dangerous occupations. NJBIA is also working with the CRC to adopt regulations that allow zero-tolerance testing where mandated by federal law or when part of a collective bargaining agreement.  

NJBIA recognizes the will of the people to legalize the recreational use of cannabis and we welcome the flourishing of a new industry in the state. However, maintaining workplace safety and ensuring businesses have the tools they need to protect both the public and the workplace must be paramount.

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