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February 01, 2023 Labor & Employment

New recreational cannabis laws could make it harder for employers to fire impaired workers

By Mike Ramsey
Employers are struggling with how to address marijuana use among workers now that the drug is legal in nearly half the country.

Employers are struggling with how to address marijuana use among workers now that the drug is legal in nearly half the country.

Stock photo/Shutterstock

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.

Testing dilemma

Notably, the California measure rejects conventional drug testing because of current limitations, whereas New Jersey allows it as part of a broader compliance system. Many observers agree there is no widely accepted test for THC, the active ingredient of cannabis, that can gauge whether a cannabis user is high at the time of screening. Tests typically identify the presence of long-lingering THC, not when it was ingested.

“What I will be advising my clients is, if the drug test they are using screens for nonpsychoactive cannabis metabolites, that is not a test that they should still be using,” Aparicio says.

Companies are continuing to develop tests that gauge “real-time” cannabis impairment through saliva or breath samples. Researchers at Harvard Medical School are even looking into brain-scanning as a potential method. Observers say it could take years of legal challenges before any product emerges as the type of gold standard the Breathalyzer has become for alcohol impairment.

“We have to have it at some point,” says Bert Randall, president of Baltimore-based Franklin & Prokopik and chair-elect of the ABA Tort Trial and Insurance Practice Section’s Workers’ Compensation and Employers’ Liability Law Committee. “When it occurs, it’s going to be a game-changer, and it’s going to resolve a lot of these issues.”

In California, employees who allege they have been unfairly disciplined or fired will be able to ask the state’s Department of Fair Employment and Housing to investigate, or they can seek permission from the agency to file a lawsuit in court, Aparicio says.

“This, at the end of the day, will still be a discrimination lawsuit, regardless of what the protected category or protected act is going to be,” he says.

By comparison, New Jersey lawmakers have not defined legal remedies for employees, says Christopher Riggs, chief counsel for the state’s Cannabis Regulatory Commission.

“I would leave that up to the employment attorneys in the private sector,” Riggs says. “The statute is silent on that, but there are other federal and state discrimination laws that need to be followed as well.”

It’s admittedly early in New Jersey’s rollout of workplace monitoring for employers who choose to use WIREs at their own expense. But already there are concerns about whether the WIREs will apply their drug-recognition training equitably and with impartiality. Final regulations will include standards for the specialists to follow.

“Racial discrimination in the application of these workplace sobriety systems seems inevitable,” Boston University School of Law professor Jay Wexler, who studies U.S. marijuana laws, said in an exchange of emails with the ABA Journal. “The data has shown that Black people are almost four times as likely to be arrested for marijuana offenses than whites. It seems safe to say that the discrimination would carry over to the employment context, at least to some extent.”

Riggs says his agency will rely on its partners in state government to ensure implicit biases do not enter the system. Regulations are subject to review, he adds.

“We’re not worried about cannabis use,” he stresses. “We’re concerned about [employees] being impaired at work, which is not a new phenomenon. It’s something that’s been around with alcohol and other prescription medications that folks are taking while going to work on a daily basis.”

Wexler says employers may be overthinking cannabis in the workplace, at least in settings where safety is less of a concern. He argues bosses already have the tools to discipline or fire workers for poor performance.

“If an employee is not doing the job they’re being paid to do, then employers should be able to take action against them, whether it’s because they’re high or don’t sleep enough or using other types of drugs,” he says.

DiCicco says that’s a fair point, although it will be up to employers in her state of New Jersey to decide how to proceed under the new statute. She anticipates most employees will follow the rules.

“They want to keep their jobs, and they want to do a good job,” she says.