Legal Weed Law Gives Employers a Useless Remedy

By Ray Cantor, NJBIA Vice President of Government Affairs On May 30, 2022

Adult recreational cannabis is now legal in New Jersey and with it begins a new challenge for employers seeking to maintain a drug-free working environment. To help businesses navigate this new landscape, NJBIA recently held a seminar on how employers can keep workplaces safe.

The new law doesn’t just legalize adult recreational cannabis, it also limits an employer’s right to take employment actions against workers who fail a cannabis drug test. Testing must be performed by certified Workplace Impairment Recognition Experts (WIREs) who are also required to do a physical exam to determine impairment. A failed cannabis drug test alone is not enough to fire an employee.

As if this new regulatory burden was not enough, the Cannabis Regulatory Commission has yet to adopt regulations to certify WIREs. Thus, while the law requires WIREs, the CRC’s failure to provide for their certification leaves employers with a new requirement and a remedy they cannot use.

So, how do employers protect the workplace from cannabis-impaired employees? Our panel of legal, safety and HR experts were quick to point out impairment issues are not new.

As many as one in seven adults has used cannabis in the last 30 days, enough to make them fail a drug test because cannabis remains in a person’s system a long time after use. A failed drug test does not necessarily mean an employee is impaired.

Our panelists all argued for employers to take a comprehensive approach, especially for safety sensitive jobs. Establish policies on cannabis and other drug use and update existing policies. The experts also suggested employers investigate a cognitive impairment test to see if an employee is “fit for duty.”

Several technological solutions, including a mobile cognitive testing app, were discussed and may be of value in determining if employees are impaired, whether it be from drugs, fatigue, stress or other causes that prevent them from working safely.

Employers were also urged to work with their insurance company to ensure their business is adequately protected. Given the uncertainty surrounding cannabis testing, it is best to have sufficient coverage and establish protocols to respond consistently to accidents and determine worker impairment.

The legalization of recreational cannabis brings greater challenges to maintaining workplace safety. Having good policies and procedures in place can minimize those risks. 

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