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109 A.B.A. J. 34 (2023-2024)
Meeting a Higher Bar: New Recreational Cannabis Laws Could Make It More Challenging for Employers to Fire Impaired Workers

handle is hein.journals/abaj109 and id is 36 raw text is: 


            Meeting a

            Higher Bar

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

            BY M  K[   A MY  i

                      ew Jersey now has the
  ` '                 equivalent of hall monitors
                      in some workplaces. Except
                      these hall monitors-known
           officially as workplace impairment rec-
           ognition 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 canna-
           bis, bloodshot eyes, slurred speech and
  z        even whether an employee is inappropri-
           ately wearing sunglasses. Enough check-
   U       marks 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 em-
ployment 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 recogni-
tion experts, or WIREs. These trained
designees can be either in-house employ-
ees or independent contractors.
   For employers with safety-sensitive
positions, they are obviously extremely
concerned, says employment attor-
ney 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 employ-
ers are dropping pre-employment and
random  drug tests for cannabis altogeth-
er, 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 Em-
ployment Act. Effective January 2024, it
will bar employers from discriminating
against employees who use cannabis
off the job and away from the work-
place. 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 employ-

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