New Jersey’s workplace guidelines released by the Cannabis Regulatory Commission (CRC) have employers dazed and confused over what they can and cannot do when a worker is high on the job.
Cannabis law experts and employment attorneys called the rules and their rollout vague and baffling and said the suggestions mentioned therein are impractical to implement and therefore will likely keep businesses in a “state of limbo.”
“I see a lot of risk from both the employer and the employees’ side that’s a little concerning,” said Sean Sanders, an employment attorney at Frier Levitt, reported the New Jersey Monitor.
Earlier this month, the CRC issued interim guidance while it continues to develop more permanent regulations to certify workplace impairment experts, which are required by law. Since legalization, employees can no longer be terminated solely because of a drug test positive for marijuana.
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.
Chair of the CRC, Dianna Houenou said the new guidelines seek to strike a balance between employers’ rights and employees’ rights, but the guidance doesn’t actually do anything new.
As such, lawyers and business leaders who have been awaiting the guidelines were unimpressed and frustrated with what the commission released, now five months after the industry launched and nearly two years since voters approved cannabis legalization.
“The concern is, how do we do this? That’s the biggest question, and I wish the CRC guidance would give us a little bit more, no pun intended, guidance,” said Tracy Armstrong, an employment lawyer at Wilentz, Goldman & Spitzer, who serves on the New Jersey State Bar Association’s cannabis law committee.
Look For Signs Of Behavioral Impairment? Good Luck With That
The form lists signs of physical and behavioral impairment: red, swollen eyes; sniffling nose; heavy breathing; a marijuana odor; rambling speech; looking confused; excessive yawning, and more even though many of these signs can also be due to allergies or medication, or even someone having a bad day.
“You don’t want to be targeting your employees who look depressed, and certainly you don’t want to be documenting it,” said employment attorney Sanders. “That brings up a whole ‘nother can of worms with the Law Against Discrimination.”
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