For many years, it’s been the last step in getting a job for many in New Jersey: the drug test that includes looking for marijuana in your system.
But last week, Amazon, the second largest private employer in the country, announced it would no longer test job applicants for marijuana. And some companies around New Jersey have already dropped some drug testing requirements, business and cannabis industry leaders say.
It’s a sign of shifting attitudes toward weed — and its increased use.
Michele Siekerka, president and CEO of the New Jersey Business and Industry Association, said some manufacturing companies have stopped testing people for marijuana because they cannot find job candidates who pass.
“It’s not like people are showing up high to work,” she said. Instead, they’re using in their free time. “With more and more states legalizing, knowing that New Jersey has been toying with his for years, I think that’s what’s driving this.”
And that’s only expected to continue as dispensaries for those 21 and older open in New Jersey. That could happen as soon as this fall or in early 2022.
Amazon is believed to be the largest private employer in New Jersey. It has more than 49,000 employees in New Jersey, according to a company spokeswoman. In 2019, a medical marijuana patient from New Jersey sued the online retailer, claiming Amazon fired him after a drug test even though he could legally use marijuana.
Amazon is getting ahead in the game, but all rules around drug testing will soon change in New Jersey.
The cannabis legalization law signed by Gov. Phil Murphy will allow any employee — unless they work for the federal government or under certain federal contracts — to use weed in their free time. The state’s Cannabis Regulatory Commission must still establish guidelines around drug testing before it takes effect. Eventually, employers can only fire or discipline workers if they come to job while high.
Proving that, however, presents a new challenge. Drug tests for marijuana do not show real-time impairment and can detect it days or weeks after a person uses. Under the new law, employers can still conduct drug tests, but must pair them with a determination from a Workplace Impairment Recognition Expert who witnessed impaired behavior from the worker.
That expert will undergo a brief certification training, and will likely be a person already employed by the company.
Legal experts and businesses have expressed concern with the new testing system and its reliance on untested witness testimony. For now, employers are stuck between two testing regimes. They fear legal action if they do nothing and a person is high and causes a workplace accident, but also if they fire someone for a positive test and are sued for discrimination.
“Doing it creates a potential legal issue and not doing it creates a potential legal issue,” said Sheila Mints, a healthcare and cannabis attorney with Capehard Scathard in Mount Laurel, said of marijuana drug testing. “You really don’t know what the right thing is to do. Other aspects of the law have not caught up to the legalization part of it.”
She said many of her healthcare clients are still following old policy and banning staffers from using non-medical cannabis until the change takes effect.
A state lawmaker has already introduced a bill that would bar workers in some high-risk positions from using cannabis at any time.
The New Jersey Supreme Court ruled last year that an employer cannot fire a registered medical marijuana patient for using while off the clock.
But there’s concern this still happens. A medical cannabis patient sued his former employer in April, alleging that a refinery fired him after he tested positive for THC. He insists he never came to work high.
David Knowlton, CEO of the Cannabis Education and Research Institute in Pennington, said the burden to prove a worker is impaired should fall on employers, but that companies need tools and best practices to determine an employee is high on the job.
No tolerance policies will have to become a relic of the past.
“If we’re going to say that marijuana is a medicine, then we’ve got to treat it like one,” he said. “The issue is, are you impaired? We’ve got to completely revolutionize how we look at impairment.”
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