Can You Get Fired For Weed In NJ? That Depends

NEW JERSEY — Despite recreational cannabis becoming legal in New Jersey, employers can still discipline workers for weed use under certain circumstances. But taking that action will often require more than a positive drug test, according to updated workplace guidance from the state cannabis authorities.

Employers have the right to drug test on reasonable suspicion of impairment, according to New Jersey's Cannabis Regulatory Commission. But the guidance, issued Friday, states that workplaces cannot act against employees solely because of the presence of cannabis in the body.

Signs of impairment on the job can lead to workplace punishment, but there's no perfect test for detecting cannabis impairment. The cannabis commission outlined a process for employers to make this determination, which includes standards for Workplace Impairment Recognition Experts (WIRE).

WIREs fill out Reasonable Suspicion Observation Reports, which list dozens of physical signs and behavioral indicators that an employee may be under the influence of drugs or alcohol during work hours. Employers can assign the role to someone on their staff or get a third-party contractor. But they should be "sufficiently trained" to determine impairment, according to the state cannabis commission.

A test that indicates the presence of cannabinoid metabolites in the body is insufficient for adverse employment action. But a test combined with evidence-based documentation of signs of impairment during work "may be sufficient" for such actions, according to Jeff Brown, the cannabis commission's executive director.

Employers under federal contracts may need to revise workplace prohibitions to be consistent with federal law, which is generally stricter than New Jersey's when it comes to cannabis.

The guidance clarifies the cannabis commission's "understanding of the existing legal requirements" around weed, and the guidance doesn't impose any additional requirements, Brown says.

Weed can show up in drug tests long after use. THC is fat-soluble, and the body tends to store fatty tissues of certain organs at a slow speed. As a result, urine tests can detect the substance up to 30 days after consumption — depending on factors such as how much and how often a person consumes cannabis. Many other drugs for which employers test become undetectable in urine after 72 hours.

Workplace drug testing has increased 277 percent since 1987, according to the American Civil Liberties Union, which has criticized regulations that allow employers to drug test workers without suspicion of substance use that affects job performance.

In the prior year, the President’s Commission on Organized Crime Report recommended addressing drugs by going after consumers themselves, rather than focusing on harm reduction or supply-side fixes. The commission asked all U.S. companies to test employees for drug use, and 25 percent of Fortune 500 companies did so by 1987.

Workplace drug-testing efforts accelerated after an Amtrak train crashed in Maryland, killing 16 people, in January 1987.

Engineer Ricky Lynn Gates and brakeman Edward "Butch" Cromwell tested positive for cannabis. Gates admitted in 1993 that the substance threw off his "perception of speed and distance and time" and the crash wouldn't have happened if not for cannabis use.

The fatal incident served as a major inspiration for the workplace drug-testing legislation that emerged from Washington in the coming years. The Drug-Free Workplace Act of 1998 required certification of a "drug-free workplace" to receive a contract or grant from a federal agency.

Congress authorized the Omnibus Employee Testing Act in 1991, requiring mandatory, random drug testing for all workers in "safety-sensitive" jobs in industries the Department of Transportation regulates.

Here's the cannabis commission's workplace guidance.