Positive drug test is insufficient on its own to fire workers for cannabis use, state says

By: - September 9, 2022 7:13 pm

Evidence of impairment during an employee's work hours must be documented to fire or reprimand a worker for weed use, new guidelines say. (Photo by Sean Gallup/Getty Images)

A positive drug test combined with documented signs of impairment might be enough for an employer to fire or reprimand a worker who is high on the job, according to guidelines released Friday by the state panel overseeing cannabis.

But a scientifically reliable test showing cannabis in the worker’s body on its own is insufficient to support adverse employment action, the guidelines say.

The Cannabis Regulatory Commission announced the new workplace regulations during its public meeting, which included approval of hundreds of conditional licenses for cultivation, manufacturing, and retail and the expansion of another medical dispensary for recreational cannabis.

Business leaders and employers have been calling on the agency to release the workplace drug testing guidelines since adult weed sales launched in April, saying it is difficult to know what action they’re able to take against employees they suspect are high on the job.

Jeff Brown, the commission’s executive director, called the guidance the “first step in moving to permanent regulations for workplace impairment recognition experts.”

“We’ve learned how to live with legal alcohol for quite some time, and employers deal with people on other substances in the workplace. This is evidence, objective-based manner to do that while we develop those permanent regulations,” he added.

The cannabis legalization law allows employers to conduct random and pre-employment drug tests for weed use and ban marijuana consumption at work. But they can no longer take adverse action against an employee just because they test positive for marijuana.

Cannabis can stay in a person’s system for up to four weeks after ingesting weed, depending on how often they consume it.

The guidelines allow employers to fill out a responsible suspicion report documenting a worker’s behavior, physical signs, and other evidence to support the allegation that the employee is under the influence during work hours.

Employers can designate a staffer to assist with observing the suspected cannabis use, as long as that staffer is a third-party contractor, is trained to determine impairment, and can complete the observation report.

To deduce if a worker could be under the influence of weed, employers can use cognitive impairment tests or ocular scans, or document other signs of physical evidence. Employers can also make their own observation reports as long as it follows the commission’s guidelines.

Workplace impairment recognition experts, or WIREs, can also be used to detect employee impairment from cannabis or any other intoxicating substance. Those experts must be certified, and those regulations are still being developed by the commission.

Friday’s nearly two-hour meeting also included approval of Ascend’s Fort Lee location for recreational sales. Officials did not say when the dispensary will be able to begin those sales.

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Sophie Nieto-Munoz
Sophie Nieto-Munoz

Sophie Nieto-Muñoz, a New Jersey native and former Trenton statehouse reporter for NJ.com, shined a spotlight on the state’s crumbling unemployment system and won several awards for investigative reporting from the New Jersey Press Association. She was a finalist for the Livingston Award for Young Journalists for her report on PetSmart's grooming practices, which was also recognized by the New York Press Club. Sophie speaks Spanish and is proud to connect to the Latinx community through her reporting.

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