Bulletin Board Magazine 2022 Volume 2

Legal/Legislative

Legal/Legislative by Ari G. Burd, Esq.

Ari G. Burd, Esq. is Co-Chair of the Labor and Employment Law Department at the law firm Giordano, Halleran & Ciesla where he specializes in representing businesses in employment related matter.

MARIJUANA INTHE NEW JERSEY WORKPLACE Let’s be blunt, since April of 2022, the recreational sale of marijuana has been legal in NJ. The recreational use of marijuana has been legal for even longer. That said, the question all employers continue to grapple with is, “how much will this affect my business?” The good news is, for most employers, it simply won’t be much of a change. Since 2009, New Jersey has allowed for the use of marijuana to treat certain medical conditions. However, the law specifically stated that employers were under no duty to “accommodate the medical use of marijuana in any workplace.” Despite this fact, in the years that followed, the courts held that New Jersey’s Law Against Discrimination required employers to accommodate the use of medically prescribed marijuana. The legislature then amended the law noting that is illegal “to take any adverse employment action against an employee” as a result of them receiving medical marijuana and to provide the employee time to provide a medical explanation for a positive result on a drug test. Employees, however, could still not appear for work intoxicated, impaired and unable to perform their duties. So even before recreational marijuana was legal, employers already had a duty to accommodate the use of medical marijuana, to a point. Even with the introduction of recreational use, only a few additional changes have resulted. Here are some of the most important rules:

Employees Can’t Be Intoxicated/ Under the Influence in the Workplace. This remains unchanged. Alcohol has been legal in this country since the repeal of prohibition. Nevertheless, employers have always had the right to take adverse action against any employee who appeared under the influence of alcohol in the workplace. The same will apply with marijuana…with the obvious quirk that unlike alcohol, there is no simple test to determine if someone is under the influence of marijuana. Tests for marijuana cannot determine if someone is presently under the influence. In fact, these tests can detect marijuana in a person’s system for days or even weeks after use. New Jersey’s marijuana laws do reference the use of a Certified Workplace Impairment Recognition Expert (WIRE) to determine whether an employee is impaired in the workplace. However, to date, no standards for these experts have been created and until the standards are issued, their use is not required. So for now, if you suspect an employee is under the influence in the workplace, you should remove the employee from the workplace, require them to undergo a drug test and carefully document what about the employee’s conduct or appearance led to the belief they were under the influence. Employers are strongly encouraged to reach out to counsel when these issues arise.

Ari G. Burd, Esq.

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