Should Cannabis Be Treated Like Alcohol? NJ Issues Workplace Guidance

The New Jersey Cannabis Regulatory Commission issued guidelines for workplaces. State officials suggest that employers treat marijuana as alcohol.

This is the first step in formulating and approving standards for Workplace Impairment Recognition Expert certifications.

Employees cannot be fired for drinking alcohol off the clock, and state officials suggest that cannabis should be treated the same way. Employees should not be punished for consuming cannabis off the clock.

This would mean that employees who undergo drug testing cannot be punished if cannabis consumption appears on the test.

However, like alcohol on the clock, cannabis consumption on the clock is punishable.

It was created to support employers in creating and maintaining safe work environments and affirming workers’ rights to due process.

Should Cannabis Be Treated Like Alcohol? NJ Issues Workplace Guidance

This guidance states that while employees cannot be prosecuted solely for having cannabis in their bodies, employers can still conduct drug tests if they suspect impairment.

Jeff Brown, NJCRC’s Executive Director, says, “Striking a balance between workplace safety and work performance and adult employees’ right to privacy and to consume cannabis during their off hours is possible.”

He continues, “We have been doing that with alcohol without thought.”

The New Jersey Cannabis Regulatory Commission sets and enforces rules and regulations governing the state’s licensing, testing, cultivation, and sale of cannabis.

New Jersey joined several other states that have established specific protections for those who use marijuana according to state law.

These policies are interim and will remain in force until the commission “formulates and approves standards” for “Workplace Impairment Recognition Expert” (WIRE) certifications.

“Although tests are improving in accuracy, there is no perfect test for detecting present cannabis impairment,” says Brown.

He continues, “therefore, best practice has been for employers to establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test to verify whether or not an individual has used an impairing substance in recent history.”

Cannabis Workplace Guidance

New Jersey businesses can still have drug-free workplace policies. They can also take action against employees suspected of being impaired while on the job. However, employers cannot punish applicants or workers who test positive for THC metabolites, with limited exceptions in federally contracted positions.

However, this does not mean that cannabis drug screening is wholly prohibited.

The guidance states that although “a scientifically reliable objective testing method that indicates the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action,” these results can be combined with “evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours” to support an adverse job action.

However, as a recent case from Washington, D.C. illustrates, it can be challenging to rely on certain behavioral and physical signs. Recently, a District government agency was ordered to reinstate a worker who had been terminated based on eye tone and redness as well as positive cannabis tests. She was a registered patient of medical marijuana and appealed against the termination. She explained that her eyes were red due to tiredness from spending much time in the hospital the day before.

The appeal, in that case, was well-approved because the supervisors allowed her to continue to work even after raising suspicion. This decision was deemed by the administrative court to be sufficient to show that the employers didn’t believe that she was impaired in such a way that it would impact her job performance.

Should Cannabis Be Treated Like Alcohol?

The New Jersey regulators clarified that the guidance is an interpretation of an existing state statute and not a new rule. The commission warns that adverse employment actions could impact employees’ rights under various federal and state anti-discrimination laws.

Jeff Brown, NJ-CRC Executive Director, stated, “Striking a balance between workplace safety and work performance and adult employees’ right to privacy and to consume cannabis during their off hours is possible. We have been doing that with alcohol without thought.”

Some states have already enacted cannabis-related employment protections, but these are primarily for patients who use medical marijuana. However, there is a growing interest in modernizing policies to reflect current political realities.

California lawmakers recently submitted a bill to the governor that would provide extensive employment protections for workers who use cannabis off the job.

New York’s recreational legalization was followed by new rules from the Department of Labor. These rules stipulate that employers can no longer drug-test most workers for marijuana.

What do you think? How should employers go about workplace guidelines around THC?

Let us know in the comments below!

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