This post was originally published on this site.
EDITOR’S NOTE: Interested in the business and networking side of cannabis? NJ Cannabis Insider is hosting a cannabis business networking event on July 20 . Tickets are limited.
By David M. White
New Jersey’s federal court issued a momentous decision on May 25 that deserves recognition, if not fanfare, as it informs workplace governance in instances of alleged cannabis impairment.
In a case of first impression, United States District Judge Christine P. O’Hearn granted Defendant Wal-Mart Stores East, Inc.’s motion to dismiss plaintiff Erick Zanetich’s complaint. In doing so, the Court held that there is no implied private cause of action by which to seek redress of employment discrimination based on the state’s statute that governs adult-use cannabis. Zanetich has appealed.
Statutory interpretation is among the more controversial roles that jurists undertake. As expositors of the common law, the legal system must divine what New Jersey lawmakers really meant at the time they enacted the Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act, better known as CREAMMA.
If lawmakers had intended the legislation to provide the ability to sue and collect damages, Judge O’Hearn wisely reasoned that lawmakers would have made that intention manifest in the statutory language. As they did not, aggrieved workers or job applicants may access other protections, including the Conscientious Employee Protection Act (“CEPA”) or the New Jersey Law Against Discrimination (“NJAD”).
Until the Third Circuit rules on the case, the cohort of lower court judges, practitioners, worker rights advocates, employers, labor unions, and scholars are left to ponder whether Zanetich reached the proper conclusion. Time (and the further consumption of both litigant and judicial resources) will tell.
What we do know, however, is that the future remains uncertain. In the court ruling, which was by equal measures elegant and eviscerating, the Court issued a clarion call to clarity:
“If the State expects this statutory scheme to work and for these stated protections from adverse employment action not to be illusory, the Legislature, the Cannabis Regulatory Commission (CRC), or the Supreme Court of New Jersey must act … If the Legislature intended for the CRC to enforce the employment provision, then the CRC should duly adopt regulations to exercise that power and provide much-needed guidance to employers and employees.”
CREAMMA mandates the creation of a Workplace Impairment Recognition Expert or “WIRE.” In concept, this is a responsible approach to the dynamic tension that exists between the maintenance of a drug-free workplace and the exercise of employee rights vis-à -vis engagement in off-the-job lawful conduct. However, the current regulatory landscape puts the creation or use of a WIRE on hold.
Last September, the CRC issued interim guidance to the state’s more than 325,000 employers. The two-page advisement identified best practices whose aspirations include (1) designation of a (preferably managerial-level) staff member to observe and document determinations of employee cannabis impairment during prescribed hours of work; (2) completion of a Reasonable Suspicion Observation Report within 24 hours of either the observation or prior to the release of results for the presence of a controlled substance, whichever is earlier; (3) independent corroboration by a second managerial-level staff member or contract consultant and (4) establishment of a relevant standard operating procedure (“SOP”).
Here are the flaws in this guidance: Depending on several factors, cannabinoid metabolites can remain detectable in bodily fluid for up to 45 days. Presence does not equal impairment. Nor will a positive diagnostic result alone provide a sufficient basis on which to take adverse employment action. Instead, the litmus test is reasonable suspicion based on observed behavior.
In the time elapsed since the release of the interim guidance, most in-state employers remain blissfully unaware of the WIRE and its potential implications for the workplace. Tellingly, the most recently released Quarterly Census of Employment & Wages (Fourth Quarter 2022) categorizes 81% of all New Jersey employers as those with nine or fewer employees.
It does not strain credulity to presume that many small businesses do not have human resources departments, or multiple managerial-level staffers, or employee handbooks, or relevant standard operating procedures to determine an employee’s fitness for duty. And yet the absence of those people, policies and procedures could place an otherwise well-intended employer in an actionable position once the CRC promulgates the WIRE standards.
New Jersey isn’t the only state in this position. Currently, 39 states have a regulated medicinal cannabis program, and 23 have fully legalized adult-use cannabis. The foreseeable proliferation of lawful cannabis consumption presents additional challenges for workplaces already subject to complex regulatory schemas.
California’s Gov. Gavin Newsom recently signed AB 2188 into law. The legislation provides enhanced protection against workplace discrimination based on the presence of non-psychoactive cannabis metabolites. Its effective date is Jan. 1, 2024. In May, Gov. Jay Inslee of Washington signed a similar initiative, SB 5123, into law. It, too, becomes effective Jan. 1, 2024.
Both California and Washington are confronting issues of workplace safety and employee rights. They are the most recent states to join the fray. They will not be the last.
New Jersey is positioned to not only strike an appropriate balance for its residents but to be a beacon by which to illuminate the national landscape. I commend officials for their willingness to explore a reasoned – and reasonable – approach to the issue.
Currently, the Police Training Commission is charged with developing a curriculum that comports with the WIRE mandate because some regulators have erroneously compared the WIRE to the work done by a Drug Recognition Expert, a highly specialized law enforcement role. Such a comparison is flawed and confusing.
The state should unburden the training commission of this task.
Instead, private sector subject matter experts should create curricula responsive to the needs of New Jersey’s diverse employers. Licenses should be issued to well-qualified private entities to teach employers and employees alike. Then, the Cannabis Regulatory Commission may take justifiable pride that our state has once more emerged at the vanguard of social change.
David M. White is a Professor of Legal Practice and director of the Conflict Management Program at the Seton Hall University School of Law. A former Special Consultant to the New York Police Department’s Chief of Strategic Initiatives, he currently serves as co-chair of the New Jersey State Bar Association Cannabis Law Labor & Employment Law Sub-Committee.
Our journalism needs your support. Please subscribe today to NJ.com.
Here’s how to submit an op-ed or Letter to the Editor. Bookmark NJ.com/Opinion. Follow us on Twitter @NJ_Opinion and on Facebook at NJ.com Opinion. Get the latest news updates right in your inbox. Subscribe to NJ.com’s newsletters.