High stakes

Employers take note: there’s a new protected class in town and its members might have weed on them.

The New Jersey Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act, signed by Gov. Phil Murphy on Feb. 22, prohibits an employer from taking adverse action against an employee or applicant for any job solely due to a positive cannabis test. The law provides for a drug free workplace—employers can prohibit their employees from showing up to work high, having cannabis on them during work hours and using cannabis on the job.

Possession is easy to determine. And according to Morristown-based Ogletree Deakins shareholder Michael Riccobono, the law covers an employee’s person, car and desk or locker. Harder, though, is determining, “is my employee high at this moment?”

Under CREAMMA, the newly formed Cannabis Regulatory Commission will develop a certification for a Workplace Impairment Recognition Expert. WIREs are necessary because while current testing capabilities can determine if cannabinoids are in someone’s system, they don’t provide hard and fast proof that someone is currently impaired. Depending on frequency of use, cannabinoids can show up in a urine test one day to a full month after use.

“People feel comfortable in terms of alcohol because we feel comfortable that when a number registers on a breathalyzer, it gives us something to hang our hat on. From an employer’s perspective, that’s their biggest concern with cannabis consumption, there’s not that breathalyzer equivalent,” Foley Hoag counsel Michael McQueeny said. “There’s some objective standards they can apply but so much of that is to be determined by the CRC.

“The truths that we know right now is you cannot terminate someone or refuse to hire someone solely on the basis on their offsite lawful cannabis consumption. It’s hard and fast,” he said. “But when it comes to terminating someone in terms of their perceived on the job intoxication, that’s when it gets dicier.”

WIREs fulfill the same role that Drug Recognition Experts, or DREs, fulfill in law enforcement: they’re training to identify people currently impaired by drugs or alcohol.

When the program is up and running, WIREs will be called on to determine if an employee is high on the job, and to determine if he or she must go for a drug test. While the CRC creates a program to train WIREs and defines the protocols they must follow, employers are left asking, well, what about the guy who’s high on the job right now?

“They’re scrambling, they’re saying, ‘I can see someone’s off, I can see they’re slurring their words, I can see their eyes are as bloodshot as a Jersey tomato … how can I make the unilateral decision that someone is high on the job and terminate them?’ You’re in a legal grey area,” McQueeny said. “I think you’ll see a lot of plaintiffs lawsuits saying, ‘my employer knew I consumed cannabis off-hours and they terminated me on the basis of that.’

They’re in a legal grey zone and that should make people nervous, from a litigation and liability standpoint.”
Another question: how does the law apply in a remote work environment? With much of New Jersey still working from home, can employees be held to the same standards of not getting high during work hours?

“We’ll see how that pans out. The pandemic has changed how and where folks work, and it comes down to policing and how an employer is supposed to monitor an employee’s work from home,” Riccobono said. “That being said, there’s nothing in the law that would prohibit an employer from taking adverse action against an employee who is working off-site. The same rules apply in this pandemic work from home environment that would apply in a normal environment, but remote work poses challenges in terms of policing it and enforcing it.”

If an employee gets high working from home and the boss finds out, where does the WIRE come in?

“Are you supposed to send a WIRE expert in a car to the person’s house? Is the employee supposed to get in a car and drive to a testing facility themselves? That doesn’t sound too safe,” Riccobono said. “But we’re hoping it’ll be explained in the rules and regulations that are coming out.”

With the connectivity people have to their jobs now, the concept of a 9-5 workday has been stretched. McQueeny added, “What happens if you go home from work at 6 p.m. and you decide to responsibility consume cannabis. If you get a call from work at 7 p.m. and then work [from home high], does that mean they can terminate you?”

New Jersey Business & Industry Association Chief Government Affairs Officer Chrissy Buteas released a statement after Murphy signed the enabling legislation saying that it falls short on allowing businesses to maintain drug-free workplaces.

The NJBIA expressed concern about the lack of employer protection as the bills moved through the legislative process, specifically about the WIREs. “By relying on certified experts whose training is not based on scientific standards, the legislation simply does not go far enough to maintain workplace safety,” Buteas said.

The NJBIA isn’t alone in its skepticism of the Drug Recognition Expert-type roles. The state Supreme Court is currently reviewing State v. Michael Olenowski in which the justices must determine if evidence obtained by DREs – which in the Olenowski includes testimony that the defendant was driving under the influence of narcotics – is admissible in court. And if so, under what circumstances. A special master appointed by the Court is reviewing the science behind the issue.

“Depending on how that review comes out for DRE, if the courts throw out that DRE are valid science, it’ll cause a problem for these workplace experts,” said Pashman Stein Walder Hayden partner Sean Mack. “Is it objective science or is there too much subjectivity? That’s part of the problem.”

While employees should avoid putting a target on their backs—if smoking after hours, don’t come in the next day smelling like cannabis, Mack warned—the protections in CREAMMA were designed to require an employer have more than suspicion because someone looks sleepy.

“To have one of these experts come in and say this person is visibly intoxicated is not an initially easy burden for an employer to meet, and then to take a drug test … employers that have been paying attention realize the bar has been set higher than it currently is, so employers might be more wary to take adverse action against employees,” Mack said.