Recreational marijuana use is legal in New Jersey, but that doesn’t mean employers have to tolerate employees using the drug on the job or bringing it to work, according to Connell Foley attorney Lauren F. Iannaccone, an associate in Connell Foley LLP’s Cannabis Law Group.
During an NJBIA HR Council meeting on Thursday, Iannaccone shared the latest information on New Jersey laws allowing medical and recreational marijuana use, the limitations of existing marijuana drug-tests, and the three essential steps employers must take if an employee tests positive.
“Let’s say the employee or applicant comes back positive for that test,” Iannaccone said. “Now you have to have a conversation to give that employee the opportunity to present medical information, whether it be a registration card or some other type of legitimate medical explanation for the positive test.”
The second step is to document it in writing what the test found and give the employee or job applicant up to three days to respond.
“This is really important because not only is the law making sure that you have that conversation, but they want to make sure that the employee had it in writing and had some time to respond,” Iannaccone said. “The employee or applicant also has the right under this law to request a retest of the original sample at their own expense,” Iannaccone said, which would be the third step in the process.
If the employee does not have a legitimate medical reason for a positive drug test, employers must next deal with the ambiguity of existing drug tests, which may give a positive result because of past use, not because the employee was impaired when the test was taken. Saliva will test positive if marijuana was used 48 hours prior, and urine will test positive if marijuana was used 30 days prior, Iannaccone said.
“Part two of the drug test is this new position – brand new – that will operate in the workplace called a workplace impairment recognition expert,” Iannaccone said. The education and training standards for workplace impairment recognition experts will be set through regulations issued by the New Jersey Cannabis Regulatory Commission in late summer, she said.
To watch the entire recording of the meeting, go here.