Recent workplace guidance released by New Jersey's state agency that oversees cannabis has many employers confused about disciplining employees who are high at work. The Cannabis Regulatory Commission issued the interim guidance while it continues to create more permanent regulations. Since cannabis was legalized in the state, employees may no longer be terminated because of a drug test positive for cannabis.
Instead, the interim guidelines allow employers to create observation reports, which, when used in conjunction with a positive drug test, could be enough to justify termination. Employers may use a third-party contractor to perform impairment observations. They may also assign a trained staff member to watch for signs of impairment.
The Trouble with Implementation
Implementing these guidelines is easier said than done. Not every business has the budget to hire a third-party contractor to oversee employees suspected of coming to work high. Even when an organization can afford to work with such a professional, they can be hard to come by. Many employers don't know how to recruit these contractors, nor how to get their own existing staff trained and qualified to perform oversight duties internally.
There's also concern that such scrutiny of employee behavior could lead to lawsuits. Though the Cannabis Regulatory Commission says that an observation form plus a positive THC test is enough to terminate someone, cannabinoids can be present in a person's system for upwards of a month. The observation form includes dozens of signs of behavioral and physical impairments, including rambling speech, yawning, red eyes, and heavy breathing. These can also stem from allergies, medication, or mental health challenges. Accusing someone of coming to work high when they're actually just struggling with depression could leave the door open to legal action.
The Impact on Licensed Professionals
As more and more states legalize cannabis, employers are scrutinizing worker behaviors more than ever. Licensed professionals, in particular, have a lot on the line. Even in states where cannabis has been legalized, licensing boards have not adjusted their rules about whether licensed professionals can partake off the clock. For many, cannabis use can still be considered a form of substance abuse, even if it's technically legal to use. If you're a licensed professional who has used cannabis off-duty in a legal state, your license may still be in jeopardy if the board considers it a rule violation.
If reported for cannabis use, licensed professionals may see their license suspended or revoked. The licensing board may dictate mandatory treatment for substance abuse, too. That's why it's important to take swift action at the first sign of trouble. As soon as you learn an investigation has been launched, turn to attorney Joseph D. Lento. With your livelihood on the line, there's no margin for error. A minor lapse in judgment or misunderstanding of the rules should not jeopardize your entire career. An attorney can evaluate the circumstances that led to the complaint against you and help you determine your best defense against the allegations. Call the Lento Law Firm at 888-535-3686 to see how we can help.