Are You High? Loophole Prevents Employers From Testing for Marijuana—But Lawmaker Proposes Solution

Employers in New Jersey face a predicament when they suspect a worker is impaired by marijuana on the job, but legislation that could remedy the problem is languishing.

Under the statute enabling legal sales of recreational marijuana to people older than 21 in New Jersey, any employer who suspects a staff member is impaired on the job is required to consult a specially trained workplace impairment recognition expert, or WIRE.

That statute, the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act, or CREAMMA, was signed into law 19 months ago. But the state still hasn’t settled on who is eligible to be a WIRE, or what training they need.

Assemblyman Brian Bergen, R-Morris. Courtesy photo

A bill introduced in January would make use of a WIRE optional.

If A890 is enacted, an employer could take an adverse employment action against a worker for being impaired if the worker fails a drug test and if the employer is prepared to testify about what triggered the suspicion of impairment, such as bloodshot eyes or a forklift crash.

The bill would also bar preemployment testing, except for certain job categories such as railroad employees and law enforcement officers who use firearms.

But that bill, sponsored by Brian Bergen, R-Morris, was introduced in January and referred to the Assembly Judiciary Committee, where it has yet to come up for a vote, despite bipartisan sponsorship.

Bergen says he was concerned that the statute requiring employers to hire a WIRE to cope with a potentially impaired employee was unduly burdensome on small businesses.

“You’ve got to put some discretion into the hands of the employer, because employers have a right to protect their workplace, particularly in safety-sensitive places,” he said. “That’s what this bill aims to do. It aims to empower the employer so that they can protect their business from people being on the job high without having to incur an undetermined cost for an undetermined person to have them tell them that they’re high.”

The New Jersey State Bar Association is monitoring A890, but has not taken a position on it, said Thomas Nobile, the bar’s director of communications.

Pending Litigation

Tracy Armstrong of Wilentz, Goldman & Spitzer/courtesy photo

Meanwhile, the law concerning drug testing is at issue in some litigation, including a would-be class action against Walmart and Sam’s Club that was removed to U.S. District Court in Camden on Sept. 2.

The suit was brought on behalf of all those in New Jersey who were denied employment, or suffered some adverse employment action because they tested positive for marijuana.

Class representative Erick Zanetich was offered a job but had it revoked after testing positive for marijuana, allegedly in violation of CREAMMA, according to the suit, brought by Swartz Swidler of Cherry Hill.

Lawyers from Troutman Pepper Hamilton Sanders, representing Walmart and Sam’s Club, did not respond to calls about the case.

CREAMMA’s requirement that an employee can’t be terminated solely based on a drug test makes sense because THC, the active ingredient in marijuana, stays in the system a long time, said Tracy Armstrong, co-chair of the employment law team and a member of the cannabis law practice at Wilentz, Goldman & Spitzer in Woodbridge.

But with the state’s failure to make WIRE personnel available, employers still can’t fire someone based solely on a positive drug test, Armstrong said. Bill A890 would ease the current predicament on employers, said Armstrong.

“If this passes, you will not be able to [conduct a] preemployment test. The other thing this does is it takes away the requirement of the WIRE. You don’t have to have a WIRE, but it places the burden on an employer to exercise its own judgment in making a good-faith determination. So if this passes, preemployment testing is going to be out the window. And you won’t have to be worried about the WIRE,” she said.

Like Bergen, Armstrong also worries that smaller employers would likely be burdened by the cost of employing a WIRE.

“I think it would clear up a lot of issues,” Armstrong said of the bill. “But what I can’t explain is why is it still in committee.”