NJ: A year after N.J. legalized weed, there’s still confusion over random drug testing

What to do with current employees and potential new hires who test positive for cannabis.

The delayed opening of New Jersey’s adult cannabis marketplace is not the only uncertainty one year after the state legalized adult-use marijuana.

The workplace is also mired in confusion over random drug testing — specifically, what to do with current employees and potential new hires who test positive for cannabis.

Under the new law, employers can still conduct random and pre-employment drug tests for weed use and can still ban marijuana use at work. They cannot fire, discipline or refuse to hire someone solely because the result is positive.

To enforce their rules, they must have a certified Workplace Impairment Recognition Expert witness impaired behavior by an employee and a positive drug test indicating presence of marijuana in a person’s system.

But employers say they are at a loss as the new law hits its one-year mark on Tuesday, even as regulators miss a target date to open the market. It’s largely because of a court fight over those impairment experts.

Rachel Anevski, whose firm, Matters of Management LLC, advises employers, HR managers and business owners, said legalizing recreational cannabis has thrown many of her clients for a loop — especially those who must ensure their workers are not impaired, such as in warehousing, commercial licensed drivers, manufacturing, or contracted with the pharmaceutical industry.

“If you go on site, you have to have a background check and a random drug test,” at these companies, said Anevski. “So what do you do now that we’ve legalized marijuana on the recreational side as well, and what does it do now for new hires? My clients are really feeling the pressure and feeling the confusion around this situation.”

The use of experts who can identify impaired workers was supposed to give clarity to employers. But it is complicated by a challenge before the state Supreme Court over the training of police departments to use Drug Recognition Experts to identify impaired drivers.

Last year the high court appointed a Special Master, Appellate Judge Joseph Lisa, to determine whether the use of Drug Recognition Experts is based on legitimate science or junk science.

The case is expected to have ramifications in the workplace over the use of experts as a right of employers.

Attorneys closely watching the case — the state vs. Michael Olenowski — say it could be another six months before it is decided due to the pandemic-induced backlogs in the courts and the complexity of the new cannabis law.

Under the law legalizing adult use cannabis, the state-appointed Cannabis Regulatory Commission is required to create a task force to study the viability of Drug Recognition Experts. That has not occurred.

“The CRC has undertaken research into (such experts for police and the workplace), and has participated in some interagency discussions but has not yet convened an official task force,” CRC Communications Director Toni-Anne Blake said in a recent email to NJ Advance Media.

Meanwhile, confusion reigns in the workplace, said Ray Cantor, Vice President of Government Affairs at the New Jersey Business and Industry Association, which opposed the use of recognition experts, maintaining they are less effective than a drug test and an added cost to businesses.

“We believe that certain safety-sensitive positions should be allowed to be drug-free backed by having to take a drug test and have a negative result,” Cantor said in an interview.

Cantor said under the new cannabis law, only Workplace Impairment Recognition Experts can do drug testing.

“Right now, there is a good deal of uncertainty and confusion in the field of worker safety and cannabis testing,” Cantor told NJ Cannabis Insider earlier this month. “First, while the law was passed and initial regulations adopted, there is no recreational cannabis for sale right now.”

“But that may not matter. What does matter is that the Cannabis (Regulatory) Commission, when it adopted its temporary regulations, did not address the issue of (drug recognition expert) certification standards and has taken no steps to create a certification process,” Cantor said.

Cantor also pointed to the new law’s vague specifications of what a cannabis impairment certification would look like.

“It is unclear if the limits on cannabis testing in the law are even in effect given the lack of regulations being proposed,” Cantor said.

The central question before Judge Lisa is whether evidence obtained by Drug Recognition Experts – which, in this case, included testimony that the defendant Olenowski was under the influence of narcotics while driving — is admissible under the 1923 U.S. Supreme Court decision that rejected the scientific validity of a lie detector test.

New Jersey Public Defender Joseph Krakora has said the tricky part about cannabis is that it stays in your system considerably longer than alcohol. In other words, the test for it is not in real time.

“An employer could test someone at the workplace and have that person come back positive for THC (Tetrahydrocannabinol), but it doesn’t mean the person was under the influence at the time of the test, Krakora told a legislative panel last year while police reform bills were being voted.

Even HR consultant Anevski said some clients were using up to 30 days as a baseline of cannabis staying in one’s system.

Cannabis and employment law attorney Marissa Mastroianni at Cole Schotz said the time lag poses a huge challenge for employers.

“There is no widely accepted and proven test to detect real-time cannabis intoxication, so it is difficult for an employer to establish that an employee was under the influence of cannabis during working hours to adequately support terminating the employee for improper cannabis use,” said Mastrioanni, who typically represents employers.

“Under New Jersey law, employers cannot take adverse employment actions —like the decision to hire or fire — against applicants or employees solely based on the applicant or employee failing a drug test due to cannabis use.”

In addition to the positive drug test, Mastroianni said an employer will need to conclude that an applicant or employee engaged in some prohibited conduct to sufficiently support an adverse employment action,.

“Most employers will not be able to refuse to hire an applicant for failing a drug test due to cannabis use because the employer will not be able to show that the applicant engaged in any prohibited conduct,” said Mastroianni.

Beau Huch, an attorney at Porzio, Blomberg & Newman in Morristown, said it could take up to a year and a half for new rules to be set after the court case is decided. In the meantime, employers could be vulnerable to lawsuits.

“Any business without a drug and alcohol-free workplace policy risks incurring fines or lawsuits until the CRC promulgates rules in consultation with the Police Training Commission (PTC),” said Huch, former legislative director to Sen. Declan O’Scanlon Jr., R-Monmouth.

That’s not encouraging news to employers, said Anevski.

“Employers … really need to come up with scenarios in how to handle them before they happen because people are smoking pot,” Anevski said. “The only difference is that we’ve been lax because we haven’t had to test for this in the past. It was a hard `no,’ and now it’s a strong ‘maybe.’”

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