New Jersey now has the equivalent of hall monitors in some workplaces. Except these hall monitors—known officially as workplace impairment recognition experts—are keeping an eye on the adults in the building.
They are looking for signs the adults are high.
Clues may include the odor of cannabis, bloodshot eyes, slurred speech and even whether an employee is inappropriately wearing sunglasses. Enough checkmarks to establish reasonable suspicion, followed by a positive drug test for marijuana, and a worker could be fired.
These are the basics of a system being fine-tuned by the New Jersey Cannabis Regulatory Commission, which was created by the state’s 2021 recreational marijuana law to establish regulations and licensing for the new industry.
The statute includes a provision that protects employees from an adverse employment action if they ingest marijuana during their off hours (an exception: people in jobs subject to requirements of federal contracts). But bosses are not obligated to tolerate a worker being impaired on duty. Hence, the compliance mechanism using impairment recognition experts, or “WIREs.” These trained designees can be either in-house employees or independent contractors.
“For employers with safety-sensitive positions, they are obviously extremely concerned,” says employment attorney Katherine DiCicco, an associate with Fisher Phillips in Murray Hill, New Jersey.
“They are looking to designate an interim WIRE already and sort of jump-start their compliance with this law and try to work out the kinks so that once the final regulations are released, they can hit the ground running.”
In contrast, other New Jersey employers are dropping pre-employment and random drug tests for cannabis altogether, given the new recreational marijuana law, DiCicco says. At a minimum, she is advising clients to make sure their drug policies are up to date.
“I’ve seen so many of them that say, ‘Drug use is prohibited.’ Well, that’s not entirely accurate anymore, because you can’t prohibit an employee from using cannabis lawfully while they’re off duty,” DiCicco says. “You have to revise that to say: ‘Drug use is not permitted during work hours, in a work vehicle, etc.’”
California employment lawyer Josue Aparicio is counseling his clients along similar lines after Gov. Gavin Newsom signed legislation in September that amends the state’s Fair Housing and Employment Act. Effective January 2024, it will bar employers from discriminating against employees who use cannabis “off the job and away from the workplace.” Besides federally regulated jobs, California also excludes workers in the building and construction trades from this protection.
“It’s important that an employer’s drug policy clearly advises the employee that the employer will not tolerate on-duty impairment and that someone who decides to use cannabis—either right before their shift begins or during their meal break or even the night before—could still be impaired when they arrive to the workplace,” says Aparicio, an associate with Hanson Bridgett in San Francisco.
Conflicts with federal law
To date, 21 states and Washington, D.C., have legalized recreational marijuana, following earlier successful pushes to legalize medical marijuana in even more states. Yet courts have sided with employers who fire workers for marijuana use, even if it’s for medical purposes, because the drug remains illegal under federal law. Two examples are the California and Colorado supreme court cases Ross v. RagingWire Telecommunications Inc. from 2008 and Coats v. Dish Network from 2015, respectively.
New Jersey and California have joined a smaller group of states that are trying to offset the federal argument with safe harbors for workers who use cannabis in their off hours. Legal practitioners say it’s too early to tell how these measures will fare in the courts.
Still, these attempts to protect employees represent a sea change in the broader public debate about marijuana use, says Gary D. Friedman, a Weil, Gotshal & Manges partner in the firm’s Employment Litigation Practice Group. He is based in New York, which legalized recreational weed in 2021 and likewise gives off-hours cover to employees, with exceptions.
“This is the back end of the development, with respect to the decriminalization of marijuana,” Friedman says.
Exactly how California employers will be able to crack down on pot-ingesting scofflaws in the workplace starting in 2024 is not entirely clear. Unlike in New Jersey, where state officials are outlining a compliance system using the aforementioned WIREs, the California law leaves it to employers.
Aparicio noted that presumably, employers could use trained professionals to look for visual cues of impairment or measure an employee’s performance against established baselines.