7

March, 2021

NJ Employers Need Special Expert’s Sign-Off Before Disciplining Based on a Positive Test for Cannabis

By Alexandra Lapes

On February 22, 2021, after nearly three years of deliberation, New Jersey became the 15th state to fully legalize cannabis for recreational and medical use.  That legalization process includes new employment law protections to users of cannabis products in certain circumstances and places significant constraints on drug testing of applicants and employees.

How We Got Here

During the November election, 67% of New Jersey voters had approved a ballot measure legalizing adult-use cannabis and a state constitutional amendment was adopted on January 1, 2021, pending regulation by the Cannabis Regulatory Commission to establish a regulated marketplace for cultivation, distribution, and the sale of cannabis.  However, lawmakers then discovered discrepancies in the legislation that were interpreted as legalizing cannabis for children and did not sign the cannabis measures into law until they reached an agreement on a clean-up bill.  In total, three adult-use cannabis reform measures were signed into law, namely, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA” or “legalization bill”), the decriminalizing marijuana and hashish possession bill (“decriminalization bill”), and the “clean-up bill,” clarifying cannabis use and possession penalties for individuals younger than 21 years old.

The decriminalization provisions of the cannabis bills took effect immediately upon signature.  The provisions affecting the employment relationship are not effective until the Cannabis Regulatory Commission provides rules and regulations, which is mandated within 180 days after the bill was signed into law, or within 45 days of appointment of all members of the commission, whichever is later.

Provides a New Protected Class

The NJCREAMMA prohibits employers from refusing to hire any person, or discharging, or taking any adverse action against an employee, because they use cannabis products, and explicitly protects employees from being subject to any adverse employment action solely because they have tested positive for cannabinoid metabolites.*  This is a change from prior versions of the bill, which had explicitly permitted employers to take adverse action against an employee for use of cannabis or cannabis items in certain circumstances.  While the new law thus creates a protected class for cannabis users in New Jersey, employers are still permitted to maintain drug and alcohol-free workplaces and policies, and employers can discipline employees who engage in some other prohibited conduct under the law, such as being under the influence, possessing, selling, or transporting cannabis while in the workplace.

Drug Testing Requirements

The NJCREAMMA does not require employers to drug test employees who they believe have engaged in prohibited conduct under the employer’s policy.  Instead, the law explicitly permits employers to drug test:

  • upon reasonable suspicion of an employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities;
  • upon finding any observable signs of intoxication related to usage of a cannabis item;
  • as random screening;
  • as pre-employment screening;
  • as regular screening of current employees to determine use during work hours; or
  • following a work-related accident subject to investigation by the employer.

The employer may then use the results of that drug test when determining the appropriate employment action concerning the employee, provided the drug test satisfies two prescribed requirements, specifically, that:

1. it is conducted with scientifically reliable objective testing methods and procedures (i.e. testing blood, urine, or saliva); and

2. a physical evaluation is conducted by a “Workplace Impairment Recognition Expert” (WIRE).

A WIRE is an individual with the necessary certification to opine on the employee’s state of impairment or lack of, related to the usage of cannabis.  To obtain a WIRE certification, an individual must be trained to detect and identify an employee’s use of cannabis items or other intoxicating substances and assist in the investigation of workplace accidents.  The Cannabis Regulatory Commission is tasked with creating minimum standards and courses of study available for full or part-time employees or others contracted to provide services on behalf of the employer, to become certified as a WIRE.

Drug and Alcohol-Free Workplaces Permitted

The NJCREAMMA states that employers are not required to amend, repeal, or otherwise affect an employer’s policy and efforts to maintain a drug and alcohol-free workplace, and employers are expressly permitted to implement and continue to enforce policies that prohibit the use, possession, or being under the influence of cannabis while in the workplace or during work hours. The NJCREAMMA also does not require an employer to permit or accommodate any personal use of cannabis activities in the workplace, and employers may take adverse employment action against any individual found to be engaging in any prohibited conduct under a workplace policy.  In addition, if the requirements of the NJCREAMMA would result in a provable adverse impact on an employer who is subject to a federal contract, then the employer may revise its employee prohibitions consist with federal law, rule, and regulations.

Questions Left Unanswered

The law is voluminous and leaves many questions unanswered about the practical implications of these new cannabis protections.  For example, if an employer suspects someone of coming to work with their ability impaired, must the employer send the employee for a drug test before taking further responsive action, or can the employer opt out of drug testing?  If the employer opts not to drug test, can it discipline or fire the person based on perceived impairment?

Clearly, if an employer does drug test, the WIRE certification is required.  However, there appear to be two competing provisions in the statute on whether a drug test is required before an employer can take any adverse employment action against an employee who comes to work apparently under the influence of cannabis.  One provision indicates that an employer is still permitted to maintain a drug and alcohol free workplace and can have policies that prohibit use of cannabis items or intoxication by employees during work hours, while another provision suggests that the WIRE certification process is not only intended for purposes of determining the reliability of a positive drug test but also to balance employers’ interest in maintaining a drug and alcohol free workplace with employees’ interest in not being improperly disciplined or discharged.

If the latter interpretation applies, then the law holds employers to a higher proof standard before taking adverse action against a cannabis user than in the event someone reports to work under the influence of alcohol.   If the former applies, then the greater protection for cannabis users only kicks in when an employer chooses to administer a drug test to an individual who is believed to be impaired, and the WIRE process essentially is meant to discourage employers from relying solely on drug tests.  Employers will need to await regulatory guidance to clarify the circumstances under which an employer needs to involve a WIRE.

Employers should review and revise their drug testing policies and procedures now to ensure they do not include any outright bans on cannabis use that are inconsistent with the NJCREAMMA and be alert for further regulations on certification standards set by the Cannabis Regulatory Commission, which may require further updates to employer policies and practices.

*Editor’s note: This article was updated 3/15/21 to correct a misstatement regarding the scope of the protection against adverse action.

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12

February, 2021

Employers Keep Getting Pounded: TAKEAWAYS for Winter 2020/21

We invite New York, New Jersey and Connecticut employers to view the latest issue of  Takeaways, our quarterly newsletter covering the most recent employment law changes.  For winter 2020/21, those include:

  • expansive protections of New York City job applicants and employees based on criminal history;
  • radical change in the employment relationship for fast food workers in New York City (also see our separate blog posting on that);
  • the most current minimum wage rates for New York, New Jersey and Connecticut;
  • the latest federal guidance on vaccinations, testing and workplace protections related to COVID-19
  • modified workplace posting standards;
  • a New York State law change on WARN Act notices and new interpretation of COVID-19 leave requirements; and
  • recent appellate court decisions on wage and hour issues in New York and New Jersey.
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30

November, 2020

Three Key Employment Items to Address Before the New Year

By Tracey I. Levy and Alexandra Lapes

As the new year quickly approaches, employers should aim to update their policies and practices to stay legally compliant and prepare their workforce for the new year.   In particular, employers in New York, Connecticut and New Jersey need to ensure they are complying with harassment prevention training requirements, have updated their sick and safe leave and their harassment and discrimination prevention policies, and have updated their procedures to meet new notice, payroll, and tracking requirements.

1. Training

This is year two for meeting the annual New York State and New York City interactive sexual harassment prevention training requirements.  Employers that have not yet conducted training this year should make that a priority before year-end to remain in compliance at both the state and city levels.  Note, for new hires, New York City requires employers with 15 or more employees to conduct initial training within their first 90 days, and all other New York employers are subject to the state’s requirement for training to be conducted as soon as practicable after hire.  When conducting the training, employees must be provided with a copy of the employer’s sexual harassment prevention policy, training materials, and a notice of employee rights.

Connecticut employers are also required to conduct sexual harassment prevention training, and the Connecticut Commission on Human Rights and Opportunities recently extended that deadline to January 1, 2021.  Employers with three or more employees must train all their employees, while the smallest employers need only train those in a supervisory role.  Meeting this training obligation will satisfy an employer’s legal requirements for the next ten years as to existing employees, but on an ongoing basis, new hires need to be trained within six months after they are hired.

2. Policies

Employers should review and revise their employee handbook policies on sick and safe leave, harassment prevention, and anti-discrimination, to ensure compliance with recent changes in the law.

  • Sick and safe leave
    • New York State adopted a state-wide paid sick leave law (in addition to the pandemic-related paid leave law), that requires employers to provide up to seven days of paid sick leave per year, depending on the size of the employer.
    • New York City expanded its paid sick leave law to mirror and expand upon the state law provisions. The amendments will require New York City employers to update their paid leave policies to reflect the new updated accrual amounts and eliminate certain eligibility and waiting period requirements, as well as to add “domestic violence” as an additional basis for taking leave.
    • While Westchester County has its own paid sick leave law, the county has posted a notice on its website that the state law now governs paid leave and employers should refer to the state law for their rights and obligations. Note that there is no similar notice with regard to the Westchester County paid safe leave law, and employers should therefore assume that the safe leave law’s separate paid leave requirements are still in full force.
  • Harassment and discrimination prevention
    • Employers in New York State should update their harassment prevention policies to reflect the State Human Rights Law’s new definition of sexual harassment.
    • New York State employers must also update their policies to provide employees with appropriate notice of their rights and remedies with regard to reproductive health decisions, including a prohibition against discrimination and retaliation based on an employee’s or an employee’s dependent’s reproductive health decision-making.

3. Notice Requirements

The following payroll and tracking procedures must be put in place, in addition to meeting new notice and posting requirements.

  • Payroll and Tracking
  • New York State employers must:
    • Maintain paid sick leave records for no less than six years; and
    • Be prepared to timely provide employees with a summary of the amount of sick leave accrued and used upon request.
  • New York City employers must additionally provide:
    • Accrual, usage, and paid sick leave balance information to employees each pay period;
    • Written notice by January 1, 2021 (see notice link here) of employees’ paid sick leave rights at hire and to current employees of organizations with 100 or more employees, and conspicuously post that notice; and
    • Retain compliance records for at least three years.
  • Westchester County employers must additionally provide:
    • A Notice of Employee Rights and a copy of the County’s Safe Leave Law to all new hires; and
    • Display the required Safe Time poster both in English and Spanish, in a conspicuous location.
  • New Jersey employers with 10 or more employees must ensure they have:
    • Updated their payroll statements to ensure that they each specify: the employee’s gross and net wages; the employee’s rate of pay; and, for hourly employees, the number of hours worked during the pay period.
  • Job Protection
  • New Jersey employers must have conspicuously posted (as of April 1, 2020), two notices regarding employee misclassification.
  • Connecticut employers must provide information on the illegality of sexual harassment and remedies available to new hires within three months of their start date and send this information to each employee.
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