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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: EMPLOYMENT LAW 34 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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