As cannabis legalization spreads across the United States, it helps protect people from criminalization, but it doesn’t protect you from being fired if you’re under the influence at work.
That raises the questions of how employers can know, and what protections employees might have if accused. There’s no breathalyzer for cannabis. And although cannabis metabolites can be detected in urine for over a month after consumption, that does nothing to demonstrate impairment in the workplace.
Drug policy reform advocates might well argue that work performance, not drug use, should be the only thing that matters, at least in jobs without physical dangers. Yet many states are grappling with the question of recognizing workplace impairment as they change their laws.
In November 2020, New Jersey voters emphatically chose to legalize cannabis for adult use. And the resulting Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) created—likely in response to employers’ fears—the idea of a Workplace Impairment Recognition Expert (WIRE).
This WIRE could be a company employee who’s trained to recognize, supposedly, whether or not a person is impaired by cannabis to the point of being unable to perform their job effectively or safely. It could also be an outside contractor.
New Jersey is the first state to seek to create such a role. But what CREAMMA did not do is spell out the details of the WIRE. How would this person be trained? How would small businesses afford to employ someone in this role? And critically, what safeguards would exist to protect employees from unfair, subjective determinations of impairment?
On September 9, 2022, the New Jersey Cannabis Regulatory Commission (CRC) issued interim guidance regarding its vision of the WIRE. But according to experts interviewed by Filter, this guidance created more confusion than clarity. It did not explain the curriculum for WIRE training, the duration of training, nor any specifics about the role.
As yet, no one in New Jersey can claim to be a WIRE, because these specifics don’t exist in state law. The CRC is empowered to issue legally binding guidelines, but nobody knows when that will happen.
“In the absence of legal guidance, it’s a morass.”
Given the ambiguity in the statute, even once these guidelines are issued, litigation seems inevitable. So it will probably, in the end, be up to the courts—and ultimately, the New Jersey Supreme Court—to interpret what the legislature intended when it created the idea of a WIRE. Achieving clarification is likely to take years.
Professor David M. White, of the Seton Hall University School of Law, has been at the forefront of discussions concerning evolving cannabis law and policy in New Jersey and New York City. In general, “there is a dynamic tension between workplace rights and workplace safety,” he told Filter. However, “In the absence of legal guidance on how to handle [alleged] impairment, it’s a morass.”
A morass that leaves employees vulnerable to unfair treatment.
If I’m an employee in New Jersey who quite legally consumes cannabis, a positive urine test can no longer be the sole basis for refusing to hire me (making pre-employment cannabis testing pointless, experts agree) or for firing or disciplining me. However, my employer can still test me—and can claim that I was fired because I was impaired by cannabis at work. (They would also have to perform a physical observation, though CREAMMA says nothing about the details of this.)
So if I get fired because my employer claims I was impaired by cannabis at work, and I wasn’t, what do I do?
Prof. White said that CREAMMA provides no private right of action, meaning that technically, a person cannot sue an employer under the act. So employees currently have no obvious avenue to seek redress.
Hugh Giordano, director of organizing for the United Food and Commercial Workers Local 360, a union that represents New Jersey workers in sectors including the cannabis industry, told Filter that he advises employees to use common sense. “Don’t show up to work smelling like cannabis. If you consume, be sure to do so off premises. Never bring cannabis onto your employer’s property, not even in your car.”
He further cautioned that if you’re not covered by a union contract, you are an “at-will” employee and can be fired at any time, for any reason. The only real protection is to organize a union.
Giordano told the story of an employee who was accused of coming to work impaired, but was a member of his union and therefore had protection.
“The employee’s urine test came up positive for THC, and he was fired,” Giordano said. “But he had his medical card, he did not smell like cannabis or look impaired. He didn’t have cannabis on his person or in his car. Since he had the union, he was able to file a grievance. We got his job back, with back pay.”
Zanetich called the department and was informed that his offer was rescinded because of the positive test result. He then filed a lawsuit.
One person chose to take this issue to the courts. In 2022, Erick Zanetich applied for a job in the asset protection department of Walmart in New Jersey. He received a job offer, then went for pre-employment drug testing, as required of all Walmart employees. His test came back positive for cannabis. Shortly thereafter, Zanetich received an email from Walmart’s human resources department stating that his job offer had been rescinded.
He called the department and was informed that his offer was rescinded because of the positive test result. Zanetich then filed a lawsuit on behalf of not only himself, but of all those who had been subject to adverse employment action on the basis of testing positive for cannabis.
Erick Zanetich vs. Walmart Stores East, Inc., d/b/a Walmart, Inc., is currently winding its way through the federal courts. The litigation could foreseeably continue for several years. It could also settle out of court, which would mean that no legal precedent would be set, and the confusion would continue until another case tests the question.
In the meantime, as we wait for legally binding guidance from the CRC, a New Jersey employee fired for cannabis impairment may be better advised, White said, to bring a complaint alleging violation of the New Jersey Conscientious Employee Protection Act (CEPA) or the New Jersey Law Against Discrimination (NJLAD) before the New Jersey Superior Court. Both avenues contain attorney fee-shifting provisions which would benefit prevailing plaintiffs. But until the law is further clarified, prospects for success are unclear.
Potential Chaos for Employers
White also summed up the potential chaos that this issue, including the WIRE question, could cause from a small business owner’s perspective. His hypothetical scenario involves Larry, who owns a landscaping business, a one-member limited liability company (LLC) with three employees.
One day, in White’s scenario, Larry shows up at a house where his employee is working, and the resident says, “I couldn’t help but notice that the guy riding the lawnmower, Steve, seems to be impaired.”
Larry approaches Steve, and observes that his eyes are glassy, he smells of cannabis, and he’s having trouble staying steady. Believing Steve came to work impaired by cannabis, Larry fires him.
But Steve gets a lawyer and plans to sue. And the lawyer will eventually ask Larry, “Who is your WIRE?”
“Larry will say, ‘Who is my what?’” White continued, “because employers have not been educated about any requirements placed on them to prove that an employee is impaired by cannabis if they take adverse employment action.”
“I would bet a princely sum that few Garden State employers, especially those with modest headcounts, are aware of their prospective responsibilities.”
The only piece of guidance the CRC has published is buried on its website: a form called a Reasonable Suspicion Observed Behavior Report. “It bears noting that the form is not cannabis-specific, but rather serves as an exemplar for what employers may ultimately elect to adopt.” White pointed out.
“In addition to completing this or an equivalent form within 24 hours of taking adverse action,” White said, employers “would also be required to have another managerial employee independently complete the same form within 24 hours.”
White noted that the large majority of New Jersey employers—over 250,000 of them, according to the Q3 2022 Department of Labor and Workforce Development census—have under 10 employees. “How many of those,” he asked, “will have a second managerial employee on site at all times to corroborate the employer’s observations of impairment?”
CRC Interim Guidance also suggests that employers include standard operating procedures for cannabis impairment in an employee handbook. “I would bet a princely sum that few Garden State employers, especially those with modest headcounts, are aware of their prospective responsibilities,” White said.
California and the Wider Picture
How are other states handling this? In California, Assembly Bill 2188, which takes effect on January 1, 2024, will make it illegal to discriminate against an employee for off-the-job cannabis use.
Shay Gilmore, a California attorney whose work includes helping cannabis companies navigate legal and regulatory matters, clarified some aspects of the current situation to Filter. He pointed out that possession and use of cannabis on the job, as well as impairment, remain legal causes for termination even under the new law.
But what about the California employee who, after January 2024, uses cannabis legally off the job but is fired because their employer claims they were impaired at work?
“That employee would have a claim under the Fair Employment and Housing Act as amended by AB 2188,” Gilmore replied.
In the absence of evidence of impairment, the employee should have a good chance of winning. But if the employer had, for example, witness testimony or video of the employee appearing impaired, then that, Gilmore said, combined with a positive drug test, would make the employer more likely to prevail.
“Whoever is first to this space will be very influential. The regulations New Jersey puts together will influence California’s approach.”
Gilmore suggested that California employers use the time before AB 2188 takes effect to revise their handbooks, make sure their policies are consistent with the new law, and communicate them clearly to employees.
Asked whether he thought California would create a WIRE-like role as New Jersey is attempting to do, he replied, “Whoever is first to this space will be very influential. The regulations New Jersey puts together will influence California’s approach, and that influence raises the stakes for the New Jersey regulations to be as good as they possibly can.”
State Supreme Courts typically look to other states when considering cases where there is no existing legal precedent. In the months and years ahead, they will likely be looking to New Jersey as its courts seek to define the WIRE role and related safeguards and employee rights.
“The New Jersey State Supreme Court is once again positioned to influence national public policy,” Prof. White said. “Time and again, New Jersey’s high court has assumed the vanguard of forging innovative solutions to novel legal challenges. I am confident the justices’ reasoning on cannabis impairment in the workplace will blaze the trail from coast to coast.”
Photograph via PickPik