by The state legalization of marijuana creates employer challenges regarding how to maintain safe workplaces, free of employees who are impaired by marijuana, without violating state laws. More than 70 percent of states in the U.S. provide some form of legal protection for the medical use of marijuana. Around 30 percent of states have legalized the recreational use of marijuana. Some states have directly addressed how employers are permitted to address these issues, but other states have provided little guidance. While some states permit an employer to bar an applicant or employee who gets a positive THC reading in a work-related drug test, other states provide protection for employees for off-the-clock use of marijuana. The laws in these states allow an employer to exclude employees who create a safety issue due to impairment but differ in how an employer can establish impairment.
Terminology: The terms ‘marijuana’ and ‘cannabis’ are often used interchangeably but they technically have different meanings. According to the National Institute of Health (NIH), the word ‘cannabis’ refers to all products derived from the plant Cannabis sativa; ‘marijuana’ refers to parts of or products of Cannabis sativa that have at least 0.3 percent of tetrahydrocannabinol (THC). THC creates the change in a person’s mental and physical state generally referred to as being ‘high’. THC also has been shown to impair cognitive and psychomotor performance. Cannabis plants differ in the amounts of THC they contain. Under U.S. law, plants with minimal amounts of THC are considered ‘industrial hemp’ rather than marijuana.
Why Drug Tests May Not Be Enough: The user’s experience of feeling ‘high’ from THC does not necessarily correlate to impairment of cognitive and psychomotor performance. The latter can continue for hours after the user no longer feels the effect. On the other hand, evidence of marijuana use can be found in the user’s system days after the impairment has ended. Workplace drug tests do not assess impairment. They detect the presence of metabolites in urine or hair that are the result of THC molecules, providing evidence that the person has used marijuana or something containing THC at some point. These molecules can stay in an employee’s system for several days. Presence of the molecules alone do not establish impairment. Saliva tests can detect whether marijuana was used within the previous twenty-four to thirty-six hours. They do not, however, assess impairment.
California and New Jersey have recently made some changes in how they expect employers to satisfy some of the challenges of their respective marijuana laws. Employers in these states must protect employee marijuana use that is lawful under state law while assuring that the workplace and coworkers are adequately protected from the negative impact of workers impaired by marijuana. Given the evolving U.S. marijuana laws, the actions of California and New Jersey may be of interest to employers throughout the country.
California: California has recently enacted a law, effective January 1, 2024, that significantly limits an employer in testing an employee’s hair, blood, urine, or other bodily fluids for THC. The new law also places marijuana users under the protection of the state’s primary non-discrimination law, the Fair Employment and Housing Act (FEHA). After the effective date of the law, it will be unlawful to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based on either:
- The person’s use of marijuana off the job and away from the workplace; or
- An employer-required drug screening that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
There are exceptions for pre-employment drug testing, drug testing in construction trades, and for jobs requiring a federal background check or clearance.
New Jersey: New Jersey passed a law in 2021 that limits the use of drug tests alone to determine impairment. The New Jersey law requires an employer to complete and document a physical evaluation regarding reasonable suspicion of impairment before conducting a drug test for the presence of THC. The law states that the physical evaluation is to be done by a Workplace Impairment Recognition Expert (WIRE) who meets the qualifications established by the New Jersey Cannabis Regulatory Commission (the Commission). An employer cannot take employment action based on the presence of THC metabolites alone. The Commission has not yet established qualifications for WIREs. Recently, however, the Commission issued interim guidance for employers on how to comply with the law. The Commission affirmed:
- To maintain a safe work environment while continuing to protect the rights of employees, employers may use the results of drug testing for THC if the drug testing is done after a documentation of impairment via the use of the Commission-issued “Reasonable Suspicion Observation Report Form”.
- Use of a person with WIRE credentials is not required at this time but it is recommended that employers use a designated staff member or third-party contractor to assist in making determinations of impairment.
- The designated staff member or third-party contractor should be sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report.
- The employer should use a standard operating procedure for conducting the evaluation.
- The employer may choose to use any of the following as evidence to establish reasonable suspicion of impairment at work sufficient to trigger a drug test:
- A cognitive impairment test;
- A valid, objective, and repeatable standardized automated impairment test; and/or
- An ocular scan.
Together, the documented impairment evaluation and a positive drug test for THC are sufficient for the employer to take employment action regarding an employee’s impairment in the workplace.
New Jersey Interim Guidance for Employers:
New Jersey Reasonable Suspicion Observation Report:
