With the sale of recreational marijuana about to begin in New Jersey, many employers are expressing concern about what they will and will not be able to do if they suspect a worker shows up at the job high on pot.

After adult-use recreational marijuana was approved by lawmakers, it was decided employers would be required to use Workplace Impairment Recognition Experts, WIREs, as part of their normal drug-testing procedures to determine if an employee was impaired on the job.

This is because a regular drug test can detect a false positive. In other words, the presence of marijuana that could have been smoked or consumed several days earlier.

Ray Cantor, the vice president of government affairs for the New Jersey Business and Industry Association, said the problem is the Cannabis Regulatory Commission has not adopted regulations yet to certify WIREs.

It's a catch-22

“While the employers are limited on testing, and are required to do physical exams by WIREs, there are no WIREs because there are no regulations to certify them,” he said.

He said the current situation puts business owners in a very tough situation.

“The law requires that they do a certain thing, do a physical exam with WIREs, but there are no WIREs, so employers are very uncertain right now as to what their rights are.”

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He said hopefully this will not become an issue with people smoking pot and then heading off to work but “the employment community is very uncertain right now as to what employers can and cannot do in making impairment determinations, so there’s a legal limbo.”

Protecting workplace safety

He said if there are no WIREs when pot sales actually begin and employers are concerned about workplace safety, they should still pull employees suspected of being high off the job.

“But what they could do afterward as far as taking action against that employee for showing up impaired is limited.”

Cantor noted NJBIA has been asking the Commission continually about this since the law was passed.

“The overall concern is to ensure the workplace is safe and that the employees are protected and the workplace and the community is protected,” he said.

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Some of the recommendations NJBIA as made to the CRC include:

— To allow for a wide variety of entities to provide training for WIREs, including businesses and private business associations, to ensure more are trained and deployed to address the needs of workplace safety;

— To allow for the use of national certification boards or other professional accreditations (e.g. medical review officers) to certify WIREs, rather than relying on a narrow set of criteria specified by State Police;

— To allow physical examinations by WIREs to be done virtually, which is consistent with growing trends in the medical field and, combined with impairment detection technologies, can significantly reduce the cost to employers, speed detection of impairment, and ensure the protection of the workplace;

— To provide that an “adverse employment action” does not preclude employers from removal of certain employees who are prohibited from doing their assigned jobs because of their inability to pass a drug test for cannabis, as required by various federal laws.

David Matthau is a reporter for New Jersey 101.5. You can reach him at david.matthau@townsquaremedia.com

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