The number of authorized medical marijuana users in New Jersey is growing. According to a 2017 Marist Poll, the number of adult Americans using marijuana is 22%. Thus, employers should not be sitting idle, waiting for the decriminalization of recreational marijuana in New Jersey before making decisions regarding marijuana in the workplace. Marijuana is already in the workplace. Employers need to be proactive and should consider the following actions now:
- Revisit drug-related policies – including, for example, to confirm that on-the-clock use or impairment is expressly prohibited.
- Consider modifying or eliminating drug screens for marijuana, if appropriate.
- Review job descriptions to ensure appropriate positions are properly identifiable as safety-sensitive.
- Provide training to managers/supervisors on drug-related policies, as well as on the ability to spot physical manifestations of impairment.
- To the extent possible, provide reasonable accommodations for an employee’s off-duty medical marijuana use and avoid related adverse employment actions, so long as doing so would not impact workplace safety or place the employer at risk of violating federal law or losing a federal contract or funding.
- Document performance issues and do so consistently. Therefore, if someone who happens to be a medical marijuana cardholder is terminated for a legitimate, non-discriminatory reason, the employer has a defense to a subsequent allegation that the termination was discriminatory.
- Apply all policies and procedures consistently.
- Consult with legal counsel on the nuances of the changing landscape of New Jersey and federal law.
- Consult with legal counsel if you are a multi-state employer as the laws in each state are drastically different.