Now that recreational marijuana is legal for adults aged 21 and older, employers and employees struggle to navigate this new paradigm. Many employers look to the government for additional guidance to clarify the permissible use of drug tests.
Marijuana Drug Testing
Employers cannot consider marijuana usage as a factor when deciding whether to hire or fire someone. Additionally, employers cannot take adverse actions simply because an individual does or does not use cannabis. Specifically, an employer cannot use the presence of cannabis in the employee’s blood as a reason for an adverse action.
However, employers can perform random drug tests as part of a policy to prevent intoxication in the workplace. Employers can also test employees who appear impaired while working or who experienced a workplace accident. An employer can use the results of a drug test to dismiss, suspend, demote, or take other disciplinary action against the employee.
Employers can prohibit employees from using or possessing marijuana in the workplace and during work hours. If an employee arrives to work impaired, an employer must take two steps. First, the employer must obtain the opinion of a Certified Workplace Impairment Recognition Expert (WIRE) to determine whether the individual is impaired at work. Second, test the seemingly impaired employee to see if he or she is positive for marijuana using scientifically valid methods. However, as New Jersey did not yet develop WIRE standards, the employer does not need to administer a physical drug test at this time.
Employers cannot take negative action regarding compensation, terms, conditions, or other privileges or employment because of cannabis use. This provides employees some security in light of the new permissible use of marijuana recreationally.
Contact an Employment Lawyer
An employment lawyer can help if your employer inappropriately reacted to your marijuana usage in light of the new laws. Contact McOmber McOmber & Luberto discuss your case.