Drug test: Legal marijuana
Introduction
New Jersey hopes to legalize marijuana and put an end to arrests by possession as the State reforms its drug laws, but the change comes with a persistent question for many: can I lose my job for drug? The short answer: yes. But it is more complicated. Companies cannot fire their employees unless they can demonstrate that they were drugged at work. That is much harder to make someone be drunk at work.
State legislators approved a bill that establishes rules and regulations to sell and consume marijuana on Thursday. With the signature of Governor Phil Murphy, he becomes law. The bill prohibits an employer. But it does allow employers who have reasonable suspicions that a worker has drugged during work, either by noticing drunkenness or after an accident at the workplace, performing a drug test and making a persontrained evaluate them to detect drunken signs.
Developing
If these dual tests determine that workers arrived at work well, an employer can fire or discipline them. The bill attempts to achieve a balance between the right of an individual to consume marijuana and the interest of a company to maintain a drug -free workplace. But it is far from infallible, experts say. It will be very difficult to enforce. I just don’t see how it will work, said Sheila Mints, Capehart Schatchard Cannabis Lawyer.
Basically, it has created a situation in which it will be difficult to manage it during the next months, depending on the speed with which the State can launch the regulatory structure to solve all these problems. No highly used and accepted drug test for marijuana can detect real -time poisoning. Instead, the presence of marijuana in the body stands out, sometimes days or weeks after a person consumed it for the last time. And unlike alcohol tests, there is no measurement that corresponds directly to a deterioration level.
Marijuana will become legal to possess in small amounts immediately after signing the bill. But the State still has to design its program to grant licenses to these experts in recognition of the workplace, who will probably be currently employed on payroll, something that lawyers say they could lead to judicial challenges.
The schedule here also presents problems: the part of the bill on drug tests will enter into force when the cannabis regulatory commission establishes its rules. But hundreds, if not thousands, of employers in the state they will feel pressed to quickly certify employees to perform the position or risk having a drunk worker without the appropriate protections.
Employers have their concerns, but also defenders. The bill allows random, regular or prior detection to employment, in addition to evaluating people under the standard of reasonable suspicion, something that the US Union of Civil Libertads of New Jersey opposes. It is a good starting point to balance those goals, said Jennifer Roselle, lawyer of Genova Burns who focuses on employment and work. I think that’s where employer’s policies become so important. Check and make sure your policies comply with what the law says is huge.
I could do prior tests to employment, which I suppose to include a physical examination, [but] cannot hire someone based on that, said Ray Cantor, vice president of Government Affairs of New Jersey Business and Industry Association. Has no sense. Cantor has advocated a safety sensitive exemption that would allow certain jobs to require workers to give negative in the marijuana test, as they should do so now. And he said that current policy, although it gives employers more power to perform drug detection tests, has still left companies perplexed.
I have spoken with numerous employers during the last weeks and have seen several versions of this language and all are confused about what they can or cannot do, said Cantor. In their workplaces, where an error can result in the death of someone or significant damage to the public, they are very concerned about what they can do.
But a security sensitive exemption could put the law in conflict with the state constitution. When the voters approved the question of the electoral ballot of November 3 that sought to legalize marijuana and turn it into part of the State Constitution, made drug use a protected right for those over 21 years old. It is possible that legislators have included it if they approved a bill instead of talking about the issue with people, but even then the lawyers say that pointing to certain professions and prohibit the use of marijuana raises legal concerns.
It is another protected activity among the many that employees have in New Jersey, said Douglas Díaz, work lawyer and work law. My best advice for employers would be that, due to language about reasonable suspicion and have to demonstrate that the person is really under influence, you will have to make sure you have objective facts.
conclusion
Marijuana is not legal under federal law and federal law replaces legalization at the state level. That is a victory for some companies. The bill includes a piece that would allow employers to prohibit the use of marijuana among employees if they can demonstrate that allowing it endangers a federal contract.
The 49,300 people based in New Jersey who work for the Federal Government would also have to follow federal regulations. For now, it is difficult to predict whether the policy will generate more unjustified dismissals or if the employers will be wrong on the precaution and keep someone in the staff despite the suspicion that the worker has been affected. Until there is no definitive evidence to demonstrate responsibility, I think it will create a real gray zone legally, said Mints. It will be difficult for employees and employers to have real certainty.
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