{"id":57305,"date":"2022-09-27T10:41:32","date_gmt":"2022-09-27T18:41:32","guid":{"rendered":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/2022\/09\/27\/new-jerseys-marijuana-workplace-protections-guidelines-are-raising-legal-concerns-experts-say\/"},"modified":"2022-09-28T19:47:23","modified_gmt":"2022-09-29T03:47:23","slug":"new-jerseys-marijuana-workplace-protections-guidelines-are-raising-legal-concerns-experts-say","status":"publish","type":"post","link":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/2022\/09\/27\/new-jerseys-marijuana-workplace-protections-guidelines-are-raising-legal-concerns-experts-say\/","title":{"rendered":"New Jersey\u2019s Marijuana Workplace Protections Guidelines Are Raising Legal Concerns, Experts Say"},"content":{"rendered":"<\/p>\n

\u201cEven the most well-intentioned employees and employers might get caught up in this.\u201d<\/em><\/p>\n

By Sophie Nieto-Mu\u00f1oz, New Jersey Monitor<\/strong><\/p>\n

The workplace guidelines released by the state agency overseeing cannabis has employers dazed and confused over what they can do to discipline a worker who might be high on the job.<\/p>\n

Cannabis law experts and employment attorneys called the rules and their rollout vague and baffling, and said the suggestions outlined are impractical to implement and keep businesses in a \u201cstate of limbo.\u201d<\/p>\n

\u201cI see a lot of risk from both the employer and the employees\u2019 side that\u2019s a little concerning,\u201d said Sean Sanders, a Pine Brook-based employment attorney at Frier Levitt.<\/p>\n

Earlier this month, the Cannabis Regulatory Commission issued interim guidance<\/a> while it continues to develop more permanent regulations to certify workplace impairment experts, known as WIREs, regulations that are required by the marijuana legalization law. Since legalization, employees can no longer be terminated solely because of a drug test positive for marijuana.<\/p>\n

The interim guidelines allow employers to use an observation report form issued by the agency, which, when used in conjunction with a positive drug test for marijuana, could be sufficient for firing. Employers can use a third-party contractor to assist with impairment observations, or another staff member who is sufficiently trained to catch the signs of impairment.<\/p>\n

Dianna Houenou, chair of the Cannabis Regulatory Commission, said the new guidelines likely capture what many employers are already doing and have been doing since before legalization. The commission does not receive the form or dictate what employers should do after observing impairment, and companies adhere to their own personnel policies on what to do with the forms next.<\/p>\n

\u201cWe want to make sure we\u2019re striking a balance between employers\u2019 rights and employees\u2019 rights to due process, but the guidance doesn\u2019t actually do anything new,\u201d she said. \u201cIt\u2019s actually the process that many employers are using to identify any impairment among employees.\u201d<\/p>\n

But lawyers and business leaders who have been awaiting the guidelines were unimpressed and frustrated with what the commission released\u2014nearly five months after the industry\u2019s launch<\/a> and nearly two years since voters approved cannabis legalization.<\/p>\n

\u201cThe concern is, how do we do this? That\u2019s the biggest question, and I wish the CRC guidance would give us a little bit more, no pun intended, guidance,\u201d said Tracy Armstrong, an employment lawyer at Wilentz, Goldman & Spitzer, who serves on the New Jersey State Bar Association\u2019s cannabis law committee.<\/p>\n

Armstrong\u2019s biggest qualm is that the guidelines lack definitions and explanations for how employers can implement these regulations in the real world.<\/p>\n

A client called her last week asking what kind of third-party contractor they can hire to keep an eye on staff that could be high on the job. She said she didn\u2019t know where to begin to try to find one because the guidance isn\u2019t that specific.<\/p>\n

She suggested the client look at taking impairment training classes so a staffer can be trained \u2014 but she\u2019s not even completely sure what would fall under the Cannabis Regulatory Commission\u2019s standard of sufficiently qualified.<\/p>\n

\u201cHow do you say that this employee has to be \u2018sufficiently trained and qualified,\u2019 and not even tell us what that means? To me, that is not guidance. That is not helpful,\u201d she said.<\/p>\n

Sanders represents hospitals, pharmacies, and doctor\u2019s offices, which all fall under the safety sector and need to prioritize what\u2019s best for the patient. He said he\u2019s advising his clients to be wary when filling out the form.<\/p>\n

The form lists dozens of signs of physical and behavioral impairment: red, swollen eyes; sniffling nose; heavy breathing; a marijuana odor; rambling speech; looking confused; excessive yawning, and more. But some of these signs can also be due to allergies or medication, or even someone having a bad day.<\/p>\n

\u201cYou don\u2019t want to be targeting your employees who look depressed, and certainly you don\u2019t want to be documenting it,\u201d he said. \u201cThat brings up a whole \u2018nother can of worms with the Law Against Discrimination.\u201d<\/p>\n

Critics also questioned the effectiveness of having a third-party contractor come in to observe someone potentially under the influence. Unless a company can afford to have someone on staff at all times, employers would have to call someone who may not arrive immediately, and the effects of cannabis may only last a few hours.<\/p>\n

And employers could still be open to lawsuits\u2014while the Cannabis Regulatory Commission suggests an observation form in conjunction with a positive THC test may be enough to terminate someone, the attorneys noted that cannabinoids can be present in someone\u2019s system for four weeks.<\/p>\n

\u201cEven the most well-intentioned employees and employers might get caught up in this,\u201d Sanders said.<\/p>\n

When asked how employers can implement third-party contractors in their workplace, Houenou conceded the \u201canswer to that question hasn\u2019t been settled yet, but it\u2019s a valid consideration.\u201d<\/p>\n

She also didn\u2019t say why the commission took months to release these interim guidelines or what the delay is on WIREs certification. She said those regulations are still being developed, and the commission is being careful to \u201censure we\u2019re doing this right.\u201d<\/p>\n

Sanders said until the WIREs training is developed by New Jersey State Police, he sees employers taking increased risks in executing the commission\u2019s guidance and potentially weighing which law to comply with\u2014anti-discrimination or employment rights statutes\u2014since they could contradict each other.<\/p>\n

\u201cIt\u2019s growing pains that typically happen when new legislation comes out. It\u2019s just that this one in particular tends to affect every one employer in our state,\u201d he said.<\/p>\n

Armstrong pointed to legislation that could address some of the questions<\/a> surrounding which industries can terminate workers for testing positive for cannabis and direct the State Police to review and approve standards for WIREs certification. The bill, A890, hasn\u2019t been heard by a legislative committee and does not have a companion bill in the state Senate.<\/p>\n

She said she believes that ultimately, the guidance will be resolved through legislation or case law as it\u2019s tested by employers in the coming months.<\/p>\n

\u201cDo I have faith it\u2019ll be resolved? Yes,\u201d Armstong said. \u201cDo I have faith it\u2019ll be resolved quickly? Probably not.\u201d<\/p>\n

This story was first published by New Jersey Monitor.<\/a><\/em><\/p>\n

\n

Majority Of D.C. Voters Support Marijuana Legalization And Oppose Crackdown On Unregulated \u2018Gifting\u2019 Market, Poll Finds<\/a><\/p>\n<\/blockquote>\n

\n

Photo courtesy of Mike Latimer.<\/em><\/p>\n

The post New Jersey\u2019s Marijuana Workplace Protections Guidelines Are Raising Legal Concerns, Experts Say<\/a> appeared first on Marijuana Moment<\/a>.<\/p>\n


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\u201cEven the most well-intentioned employees and employers might get caught up in this.\u201d By Sophie Nieto-Mu\u00f1oz, New Jersey Monitor The workplace guidelines released by the state agency overseeing cannabis has employers dazed and confused over what they can do to discipline a worker who might be high on the job.Continue Reading<\/a><\/span><\/p>\n","protected":false},"author":457,"featured_media":0,"comment_status":"false","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[81],"tags":[],"_links":{"self":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/57305"}],"collection":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/users\/457"}],"replies":[{"embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/comments?post=57305"}],"version-history":[{"count":1,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/57305\/revisions"}],"predecessor-version":[{"id":57306,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/57305\/revisions\/57306"}],"wp:attachment":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/media?parent=57305"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/categories?post=57305"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/tags?post=57305"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}