Workplace policies that include a general prohibition of all cannabis, including termination for cannabis use off-duty, need to be revised. Now, more than ever, employers need to make sure they are documenting reasons for firing/disciplining an employee. Employers need to document performance issues to help defend against potential claims from employees that disclose off-duty marijuana use.
Employers may need to reexamine their pre-employment drug testing procedures. The implementation of a mandatory drug testing procedure is not illegal, but firing someone based on the drug test alone is. Similarly, an employer cannot take adverse employment action, such as not hiring an applicant based on a drug test. CREAMMA requires an employer to contact a workplace impairment-recognition expert (WIRE) when they suspect a worker of on-the-job impairment. The State has yet to establish the requirements for who can be a WIRE and what training they need. Therefore, disciplining an employee for cannabis impairment is an evolving area.
There is some uncertainty regarding employees in safety-sensitive positions, like those who operate heavy machinery. Federal law trumps State law, and CDL requirements still apply to New Jersey workers. Employers will need to proceed cautiously until there is further guidance regarding drug testing and impairment as it relates to legal use of cannabis outside of work.
If you have any concerns regarding the changes regarding drug testing and how to prepare for it, please feel free to contact our Employment and Labor practice at (973) 729-1880 or via email:
- Thomas N. Ryan, Esq. (firstname.lastname@example.org)
- Ursula H. Leo (email@example.com)
- Fredric M. Knapp (firstname.lastname@example.org)
- Thomas J. White (email@example.com)