While the delayed start to recreational marijuana sales in New Jersey has grabbed recent headlines, concerns about workplace safety remain and have not been officially addressed by the Cannabis Regulatory Commission.
NJBIA Vice President of Government Affairs Ray Cantor said absent any CRC actions, employers will be in legal limbo once recreational cannabis sales begin.
“If sales of recreational cannabis started tomorrow, an employer would not be able to take an adverse action against an employee for failing a drug test or for being high on cannabis at work,” Cantor said. “And they would not be able to use a Workplace Impairment Recognition Expert, as required by law, to comply with that law.
“So employers, at this late stage, really are in no man’s land in terms of knowing what they can do to protect workplace safety and enforce a drug-free workplace.”
At issue, the CRC has yet to propose and adopt regulations providing for the certification of Workplace Impairment Recognition Experts (or WIREs), which employers are required to use as part of their drug-testing procedures.
Well before the legalization of recreational cannabis, employers, especially those in safety-sensitive occupations using heavy machinery, required that no cannabis be detected in a drug test to ensure that employees are not impaired while working.
However, since drug tests can detect cannabis in a person’s body for days after use, making it difficult to know if the person was impaired on the job when the test was taken, the new cannabis legalization law required employers to supplement a positive test and rely on the observations of a WIRE to determine impairment.
Cantor maintains that WIREs are less reliable than a zero-tolerance drug-testing policy. However, NJBIA continues to impart urgency for the CRC to promulgate regulations for WIREs.
Some of the recommendations the association has made to the CRC include:
- To allow for a wide variety of entities to provide training for WIREs, including businesses and private business associations, to ensure more are trained and deployed to address the needs of workplace safety;
- To allow for the use of national certification boards or other professional accreditations (e.g. medical review officers) to certify WIREs, rather than relying on a narrow set of criteria specified by State Police;
- To allow physical examinations by WIREs to be done virtually, which is consistent with growing trends in the medical field and, combined with impairment detection technologies, can significantly reduce the cost to employers, speed detection of impairment, and ensure the protection of the workplace;
- To provide that an “adverse employment action” does not preclude employers from removal of certain employees who are prohibited from doing their assigned jobs because of their inability to pass a drug test for cannabis, as required by various federal laws.
While regulations for WIREs still wait in the weeds, NJBIA will be hosting an event on May 4 to help employers know how the recreational cannabis law impacts their business and what they can do to protect their employees and their businesses. More information can be found here.
“We definitely understand the challenge before the CRC in standing up a new industry,” Cantor said. “But we cannot wait for an accident to happen before we act on workplace safety.”
