None of the states that passed recreational use laws, however, have required employers to accept on-the-job-use. If the proposed legislation tracks the March 2019 proposal, it is expected the new bill would include a provision that expressly entitles employers to prohibit recreational use on its property or during work hours. We already see this prohibition in states with recreational use. In fact, New Jersey’s own medical cannabis law suggests employers will not have to tolerate cannabis at the workplace. New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act allows employers to prohibit cannabis from the workplace – even if the employee is a lawfully registered medicinal user. Thus, while the Act prohibits an employer from adverse employment action (i.e. disciplinary action) against an individual simply because the individual is a lawfully prescribed medical patient, it does not require an employer to tolerate use on its property. In fact, the Act further allows employers to take adverse actions against employees who possess or use cannabis in the workplace.
Updating Employer Policies
The legalization of recreational marijuana also requires employers to consider whether drug testing should be incorporated into its policy manual. First, employers must consider the category of employees and the nature of their jobs before creating a uniform policy. For example, employers with federal contracts or safety sensitive positions, however, must have a drug and alcohol policy that is strictly enforced and follows governmental guidelines. Even in the absence of federal contracts, employers must also tailor their policies consistent with State and Federal employee privacy rights. In some states, the concept of random drug testing is limited by individual privacy rights, except for those holding safety sensitive positions (e.g., in New Jersey, police officers are required to submit to random drug testing under the AG guidelines). As a result, employers often elect to impose testing requirements based on “reasonable suspicion” of impairment.
Drug Testing
Likewise, employers must consider the methodology for drug testing. The three popular ways to test for cannabis are urinalysis, blood sampling, and saliva testing. The three tests, however, merely detect prior use and not necessarily current impairment. Given the way the human body metabolizes cannabis, a person may still test positive weeks after a single use. As a result, those tests cannot detect whether an employee is currently impaired. Because of this problem, new tests, such as cannabis breathalyzers and digital sobriety tests, are being developed to test current impairment. Employers with unionized employees may have to negotiate the testing procedures with union officials to not violate any collective bargaining agreements.