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Marijuana and The Workplace: What’s New for 2021
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Welcome to the Santomassimo Davis LLP webinar, where our team of highly experienced Outside General Counsel attorneys provides important information that you and your business can potentially act on. We hope to provide you with valuable information that can be used at work or in your life after listening to our discussion. For this webinar, our topic will cover marijuana and the workplace.
Please join OGC Solutions partner Christopher Santomassimo for a roundtable discussion on the new developments with drug-testing and cannabis laws that are rapidly changing in New Jersey, and how changing landscape of cannabis laws applies to New Jersey’s employers.
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- Introduction the Santomassimo Davis LLP – Outside General Counsel™ Solutions
- The New (Conflicting) Landscape
- “Square One”
- Where is Marijuana Still Not Allowed?
- New Jersey’s Legislative Scheme
- Pre-employment Testing
- Medical Marijuana
- RICOVR Ultra-Sensitive Rapid Testing Platform: Steve McMaster
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Chris Santomassimo 0:07
Good afternoon, everyone. And welcome to the webinar on marijuana in the workplace and what’s new for 2021. I’m one of your hosts, Chris Santomassimo, from Santomassimo Davis LLP Outside General Counsel™ Solutions. We really appreciate everybody joining us today too, in some cases, start a dialogue, in other cases continue with the dialogue about an issue that, in my opinion, is one of the most challenging issues facing employers today, probably just after COVID-19, of course.
Chris Santomassimo 0:37
So what we’re going to talk about is, what’s the landscape today on this really important issue? And how can we manage through it? What I like to do is also like, well let you know that joining the program today later in the presentation will be Steve McMaster from PCB capital, who’s going to introduce everyone to a really interesting technology and a product called the recovery testing platform that allows saliva testing for marijuana. So we’ll be able to after we understand what the ground rules are, and what the and have a discussion about some of the issues. Steve will talk to you about what is a really interesting technology that I think will enable some of us to get through these issues a little in a little bit more, better fashion. I have to say that I think a lot of us have been preoccupied with managing through COVID-19 over the last year for sure. And I think that’s taken our attention away from a lot of different issues like marijuana and how it impacts the workplace. But as we start to settle down a bit from COVID-19 and start to get back to business. Considering all the legislative developments that there have been in this area, I think it’s it’s time to make sure that we’re all prepared. We’re understanding what’s going on, both at the executive level and the legislative level and, and prepare for some of the changes that are coming for sure. I think the main thing that we’re going to focus on is how to get through some of the confusion that employers face. Because what we’ll see is some conflict between state law and federal law, we’ll see differences amongst the laws in different states, even, you know, the states that are contiguous with New Jersey, our focus is going to be a lot of New Jersey today. But you’ll hear some discussion about what’s gone on in other states in the past and what’s going on and in other states, because I think certainly the national activity is going to shape what happens in New Jersey, for sure. And I think that there’s definitely a learning experience among the states. And I think they’re looking at each other for purposes of identifying trends and probably solutions to some of these problems. I think, in addition to that confusion, one of the things we’re going to recognize today is that much of our concern, and much of the problem, the problem that employers face, comes from the fact that this change and how we approach the issue is really an entirely new paradigm. It’s in conflict with the way we’ve managed to this issue for decades. in federal laws, you know, as has outlawed marijuana for decades since the early 1970s. And as employers, we’ve dealt with the issue in a different way or much different way. And then we’re seeing today, both as a con as it applies to medical marijuana use among employees, as well as recreational use, which is the new wave in many places. So before we get started in the details, what I’d like to do is just to talk to you briefly about the agenda for today. What I’d like to do is just introduce our firm for a moment so that you understand the context for this because, in our role as outside general counsel’s for companies, this is very much a forefront issue that HR professionals, as well as other executives, are dealing with day to day and coming to us for advice. We’ll talk about this conflicting landscape that I mentioned, square one, you know, where are we starting from where what’s the current snapshot for today, whereas marijuana is still not allowed, despite what’s gone on at the federal and state legislative level. We’ll talk about legislative developments in New Jersey, pre-employment testing mat, medical marijuana will also cover recreational marijuana use in the course of these topics as well. And then lastly, again, talk about Steve McMaster and the recovered rapid testing platform. One thing I’d like to encourage everyone to do is to have a dialogue as we go through today’s program. You’ll hopefully know that in the zoom platform, there’s a q&a function where you can post questions, so post those questions, and we’re happy to answer as many of those as we can. Toward the end of the program. A lot of times what you find is that a question that might come up in the middle of the program sometimes will be covered a little bit later. So let’s do our best to be a little patient and we’ll answer them, you know, in the best order that we can. And then I don’t want this to be the last time we all talk to each other about this. issue.
Chris Santomassimo 5:01
Not only is the law developing in this area, but your workplaces are certainly evolving post-pandemic, for sure. And maybe changing in response to some of the things we’re talking about today. So what I’d like to invite everyone to do is continue the dialogue with us after today. And in fact, our team will reach out to each of the folks that attended to set up some time to continue that conversation. And you can feel free to reach out to us with questions as they come up after today. So just briefly about our firm, as I said, the topics that we’re talking about today, we’re really ripped from the headlines, if you will, from our day-to-day practice. So we are outside General Counsel for mid-cap companies, which means that our firm becomes the virtual law department for companies that don’t have their own internal legal counsel but have needs on a daily basis to help them manage through a variety of business and legal issues that range from employment to real estate to contracts, etc. Many firms that are big enough to have their own attorneys in-house, you know, find themselves subject to high hourly rates. And you know, dealing with law firms only on an emergent basis, what we want to do is make the benefit of having an internal counsel more available to those smaller companies, but on a fractional basis. And we’re able to offer not only a team approach to help you through your legal issues, but also we can do it at a fixed fee. So you’ll know months a month, what your fee is going to be and that all of your legal issues are handled for a single price. That gives you more predictability, more ability to budget, etc. So because of that relationship we have with our clients in the mid-cap space, they come to us pretty frequently, especially those that are under a fixed fee, to have dialogues about these issues, and really get our business input as well as our legal counsel on a variety of issues. So some of the things I’m going to talk to you about today come right out of those client relationships. So they’re not only hot from a timing perspective, but these are things on the, on the tons of employers in New Jersey and elsewhere, as they try and manage through these issues. So I, as I hinted at a moment ago, we’ve got a lot of sort of conflicting things on the landscape in front of us right now, which I think makes things a little bit more difficult to manage. As an employer, you sort of start from the place that at the federal level, marijuana remains illegal, it remains illegal to possess, to transit to sell, to handle in any way it’s a schedule one substance on the Controlled Substances Act. People have been arrested for it and prosecuted and jailed for it for many decades. And that’s the paradigm that, you know, employers have operated under for a very long time, and quite often your company policies are going to reflect the fact that pot is illegal, or has been illegal at the federal level. But what we started to see about nine years ago, or so maybe a little bit longer is that you know, the state started to think about new ways in which to deal with marijuana, really in two categories, certainly, on the medical side, as well as recreational. And what we started to see with Colorado being the first one in 2012, was that states legalized the use of marijuana on a recreational basis, and many more states, 3435 of them now have made marijuana legal at the state level for medical uses. So you got a major conflict in terms of how the state you’re dealing with it as, as well as at the federal level. You know, what’s interesting about it, too, is that, in my opinion, anyway, there are a lot of there, there’s a lot of political overtones over this issue. So we see it in the news in different contexts.
Chris Santomassimo 8:36
You know, one side of the aisle has one view of it that contrasts and conflicts with the view from the other side of the aisle. It doesn’t really matter which side of the aisle you’re on whether you support the idea of legalization or not for today’s purposes. But you got to know I think that the push certainly has political overtones to push to make it legal. But how we deal with it as employers don’t really matter doesn’t really matter what side of the aisle you’re on. But what matters is what your business objectives are. That’s what we want to help isolate is what are your objectives? What’s the set of laws and the set of requirements that your business needs to operate under? And how are we going to come up with a policy and a program that makes sense for your business given all of the requirements that we’re starting to see develop? in our, in our own backyard, it’s been talked about quite a bit in the last year or more now. Right here in New Jersey, we’ve had medical marijuana that’s been considered legal for a number of years now we talk about recreational marijuana which thanks to the referendum in the last election it’s now legal in New Jersey now we’re not there yet where you’ve got dispensaries that are sanctioned in fact the process to get that process underway is really just begun at this point. But all of a sudden it’s an issue and you know it’s not it’s not too rare that you wouldn’t be in a public place and smell marijuana in the air as I did last weekend in Atlantic City. It’s happening you know, the fact That the referendum went through, is really just kicking off a whole new way of dealing with this. And you’re gonna see it more and more often, even in advance of the state approving dispensaries and the whole licensing process for sure.
Chris Santomassimo 10:14
What I also find interesting is the view, as indicated in the Gallup poll that mentioned on this slide here, that 60% 67% of Americans favor legalization. Now, that’s public opinion. it contrasts with some things we’re going to see on later slides in terms of what it does in the workplace, for sure. But it’s kind of interesting that that’s how people view the view marijuana on a national level. What’s interesting to me, too, is, is the fact that, that when you talk about marijuana, we’re talking about a substance that has virtually no standardization. It’s not, it’s not regulated by the FDA, because it’s not legal at the federal level, right. So there’s no FDA oversight to determine whether it’s effective to treat certain illnesses, or whether it’s, there’s any standardization among the products that you’re going to see. So there’s no quality control, efficacy has not been proven. And it’s much different from alcohol, for example, which is, you know, a substance that has, you know, some similarities in terms of how they affect individuals who use it. But it’s a lot more difficult to manage, as we’re going to talk about. So we’ve got a product that’s being introduced into a society that’s got virtually no regulation, except with respect to who can sell it and where and who pays taxes for. So to me, that’s a pretty major hole that needs to get filled. But for the time being. It’s a whole we sort of have to live with because of this conflict, among loss. You know, and as I start, as I think about this issue about marijuana in the workplace, this is a question that sort of occurred to me recently. It’s what is marijuana in the workplace and COVID-19 have in common? It sounds like a crazy question to ask, especially given what we’ve dealt with, with COVID-19. But to me, the answer is that we’re dealing with new paradigms, new ways of new points of view, new ways of managing employees, and new ways of dealing with how people function in the workplace. And under what circumstances. Again, doesn’t matter what side of the aisle you’re on. But I think what it tells us as employers is that we need to think about things in a more flexible way and to look, look at the issue, perhaps through a different lens than we’ve looked at in the past. And part of the reason that you need to do that, I think as an employer is a question of whether you’re going to be able to attract candidates to fill the positions at your company if you don’t think about this in a new way. Because I know from experience, so I’ve got multiple clients who have a difficult time filling positions, especially in the manufacturing and distribution environments, without amending their, your, you know, their old drug use policy or drug in drug testing policy. I can think of one in particular that, frankly, was seeing failures of at least seven out of 10 people who apply for their jobs. These are people that were otherwise qualified, but couldn’t pass the drug test, because they showed positive for marijuana. So, again, to me, you need to think about how you’re going to manage your work in a more flexible way. And when I sort of analogize that to COVID-19, when I’m talking about there is that the ideas about when we work and where we work in particular, and how we perform our jobs really got turned upside down last year beginning last year that with the pandemic, so it required us as employers to look at things and how do we get productivity out of people? And how do we make sure that people are doing the jobs in a very different way than we did before the pandemic starter? So again, flexibility is where we start. You know, and when I tried to sort of boil it down into its, its most important elements, it’s not so much about reimagining the workplace, which apparently is a pretty popular phrase, there are these days, I think it’s more about rebalancing. I’m not, again, I’m not advocating that we think about marijuana in one way versus another. But if you’re gonna manage your employers or your employees rather, and you’re going to keep your business moving, it’s probably time to think about things in a new flexible way. And I think also to recognize that there’s probably some generational differences on this issue as well, that probably feeds into the paradigm that we need to think about as we again rebalance how we do this sort of thing. I don’t know if that makes it any more palatable, quite frankly, these changes. But if you think about it as just sort of advancing and recognizing that maybe certain views in society are changing a bit, you know, can we sort of encompass those new views, and rebalance in a way that’s going to it’s going to allow you to get business done, do it safely, but also do it effectively. And maybe open up the, you know, open up the doors to folks that otherwise wouldn’t be eligible to work in the workplace. So square one, in my mind, is, you know, where do we start from?
Chris Santomassimo 15:15
What’s interesting about marijuana and one of the many things anyway, is what I mentioned before, and then how do we view we know, users of it? And how do we deal with the impacts of people that use it, this idea of being under the influence is pretty difficult to determine under many, under any circumstances, you know, if somebody were under the influence of a narcotic, or alcohol a lot easier to deal with a lot easier to recognize, rather, and a lot easier to manage. managers understand what that means employers can see it a lot more easily than they can for somebody who’s under the influence of marijuana. So we’re what we’re going to talk about later is the need to train your employees, and train your managers in particular about how to see it and how to how to deal with it. And that’s going to focus in and probably that’s going to help you focus a little bit about what your drug testing policy is going to be. And where are you going to wear it? What are you going to test who you’re going to test? And how are you going to do it? Secondly, I think employers really need to adjust for medical marijuana use as well, there have been a couple of decisions out of the New Jersey Supreme Court over the last number of months. In fact, one was just last week, which gives us some real guidance in this area. But putting aside all of the other pieces of those opinions, what you realize is that employers really need to adjust for medical marijuana use, because it’s happening more and more often, it’s being prescribed quite often, for a lot of different ailments that go beyond what it originally was being prescribed for when some of these opinions came out, namely, for cancer, we’re seeing, we’re seeing lots of other uses for it. Again, as I said, Before, we don’t know whether or not it’s effective, and there have been no FDA studies on the issue. But at the same time, we’ve got licensed physicians who are prescribing and so we got employees who are using it, we’re gonna have to deal with it in the workplace, for sure. that plays into the Code of Conduct issue, you know, what many of our companies likely have a code of conduct that’s got something to say about a conviction history, whether you’re going to hire people with a conviction history, people who have been arrested for drug possession, I think, I think it’s requiring us to look at this in a very different way, and perhaps amend those policies to come up with more workable policies that are going to make, you know, make some concessions for offenses that relate to marijuana, especially when they’re in very small quantities. And we’ll talk a little bit more about that in a bit. Kind of where you start from, though, is that employers generally do not need to accommodate recreational marijuana use. However, more and more exceptions are growing. And we’re seeing that in the legislative activity we’re going to cover a little bit later. So we really are thinking about things in two different silos, the recreational silo, and maybe more, the more complex one is that the mental medical marijuana silo. So what you need to have as an employer is a policy that’s going to balance all those issues. And it’ll have a written policy as well. We’re not going to talk about a specific policy, but because quite frankly, I think the answer is going to be different for each employee, each employer. So what your business objectives are, what your business is, you know, what industry you’re in, and what your operation is, all of those things are going to come together to instruct us about exactly what your policy ought to look like. Well, we’ll talk about some of the elements of it as we go, and give you some food for thought. Also, too, I think one thing we need to spend more time on, in general, is encouraging the speak of culture at our companies. And this really feeds into the code of conduct that I mentioned on the last slide. You know, the idea that what we want is to have people evidence are aware of what’s going on in their workplaces and have employees speak up when they see something that’s out of line. When we talk about marijuana, what we want to do is to have a coworker speak up and report to a manager when we when he or she sees a co-worker that may be under the influence of marijuana, not even not evident to the manager but there’s something about how they’re acting that’s just not right. So what we want to do is encourage people to raise their hands speak up and hopefully avoid some accidents and injuries but also, you know, deal with what we’re seeing more and more often is that people are using it without reporting it to their employees, employers.
This I thought was some interesting, some interesting information about what it does to the workplace. So the National Institute on Drug Abuse did a study. Employees who tested positive for marijuana on a pre-employment urine drug test had these things happened 55% more accidents 85% more injuries and 75% greater absenteeism. So you can see that these factors, I think are in direct contrast to what is this, this groundswell of support for legalizing marijuana, what we see as employers is that it’s not good for the workplace in general. So that goes in that really factors into the balancing I’m talking about. So I’m not suggesting that this is necessarily a good thing for employers. But what I mean by balance is trying to balance this issue, the realization that we’re seeing a lot more accidents and a lot more injuries and other problems related to the use of marijuana, but at the same time, recognize recognizing that it is now infiltrated the workplace and will only increase as we go. So if we’re going to continue, especially in the blue-collar environments to attract candidates who can do the jobs, this is something that we probably need to be factoring in, you may decide as an employer that you can’t live with, you know, some of these, some of these changes. And that’ll be part of your policy as well. But I think we need to have an open dialogue, as managers to figure out what the right balance is for the particular employee, employer. And I also think that you know, when you talk about policies, having policies in place really give people notice about what’s expected of them, but also helps you as an employer, promote consistency among your workforce so that you’ve got standards written down, that would be applied when a certain event happens. Again, it puts people on notice, but more importantly, it gives managers a guide about how they’re going to manage these issues as they go. And when you’ve got consistency, you’ve got, I think, a better and more reduced exposure when it comes to claims for discrimination claims that you treated people in a disparate way, because of some proper improper category. If you’ve got a standard on the books, in your policies, and everybody knows about it, you’re more likely to have a more consistent approach and fewer claims in that area. So it’s got the value that goes beyond managing. It goes beyond managing the marijuana issue. So So, so far, we spent time talking about you know, the the the foundation or the place, we start from square one, I just want to recognize for a moment, places where marijuana use among employees is not still not permitted, still not allowed. So federal employees are not permitted to basically have a positive drug screen for marijuana and they can be terminated. In most cases, federal contractors, that is contractors that are in companies that are supplying goods and services to the federal government need to have a drug-free workplace and can’t permit recreational marijuana use. And to have people with positive drug screens, subject to some of the medical marijuana things we’re going to talk about later, does the Federal Drug-Free workplace act. And then when you talk about the Department of Transportation, that is basically truckers that are doing interstate travel. The Dot does not authorize the use of schedule one drugs including marijuana. So when you got workers that are in safety-sensitive positions, and they’re subject to testing, because of their commercial driver’s licenses, and there do t certifications, you got to recognize that CBD use so maybe not necessarily marijuana, but CBD products may also cause a positive result. So truckers need to certainly care about that. But these are places where we’re not going to allow we can allow recreational marijuana use and in general and some with some accommodations that may be required because of medical use. They’re generally not going to be permitted to show positive drug screens for marijuana. So what we’ve seen over the last couple of months is a lot of activity is in Trenton basically around the legalization of marijuana. So, this new statute New Jersey crema is the acronym for its the cannabis regulatory enforcement assistance and marketplace Modernization Act. When you boil down a lot of pages of legislative activity, here are the high points of it. Employers, as I said before, can maintain a drug-free workplace that is they can prohibit the use and possession of being under the influence during work hours. And that’s consistent with how most employers have managed this issue for decades.
This is where it starts to change. the playing field a little bit is that employers can’t refuse to hire, they can’t terminate the camp bar and they can’t discriminate against individuals because of recreational use of marijuana. Again, if as long as you’re not in one of the industries and one of the categories I’ve talked about on the previous slide, of course, but you can’t, you can’t refuse to hire people. And you can terminate them just because they use marijuana outside work hours, and they don’t show up under the influence in the workplace. So you can’t take adverse employment actions against the applicants as well. Now, here’s where the exceptions come in federal requirements, as I said a moment ago, federal contractors, and then safety-sensitive positions, and we’ll talk in a moment about a bill that’s trying to work its way through Trenton now, which in my opinion, may create more ambiguities than it helps. But in any event, we’ll talk about some exemptions there. And then, so testing is still permitted under this statute, as long as it’s reliable. And there’s a physical assessment about the state of impairment. So if an employer’s got a reasonable suspicion, or there’s or there’s a suspicion, and you’re going to test post-accident, random testing, if you’ve got a program in place, and then pre-employment with some limitations, you can still do testing under these circumstances. But as you can see, you know, when you talk about pre-employment testing, being allowed, it may conflict with the inability to depart people because of use off-hours. So we’ve got a lot of sort of developing topics that don’t all fit together at this point. And we’re doing our best to sort of managing it. But this is the current state of it, you know, of the statute as we, as we have it today. When we talk about an adverse employment action, by the way, it’s basically all of the things I mentioned before that is refusing to hire or an employee or employee, somebody discharges an individual from employment, requiring them to retire from employment, or discriminating against an individual in terms of compensation, conditions of work, terms of employment, or any other privileges of employment. So it’s a pretty broad standard.
Chris Santomassimo 27:02
This is the bill that Senator Sarlo has proposed. In order to amend Ajay crema. And as I said before, I think it may create more issues than it helps quite frankly, but I want to just go over it with you real quick. So the proposed language is that no employment, no employer shall take any action to prohibit an employee using cannabis items during non-work hours except what he’s listed here, upon a determination that it’s a that is a safety-sensitive position, or is that a critical infrastructure facility or construction site and has an exceptionally high risk of potential harm to other employees or to public safety? That sounds good. That sounds like it makes sense to me. But what’s troubling about it is that the bill is basically saying that the approval to designate an employee as being within the exemption is going to be subject to the cannabis commission, and an end a decision by the Commission upon an application by the employer. So I think what that means is that if you’ve got somebody if you’ve got a position that you think is safety-sensitive, and you want to be able to test for marijuana use, within that position, you’re going to have to apply to a commission, you’re gonna have to wait for a decision before you can actually do the testing. So I think logistically, it puts an exceptional burden on employers, it remains to be seen whether this amendment will go through and exactly how the commission is going to work. But just on its face, I think it creates probably more harm than good in terms of our ability to manage in an effective way. But we’ll see the commission only began to meet last week, for the first time. So we’re in the very early stages of this, I don’t, I can’t even predict exactly how it’s going to work. for employers, all I can tell you is that the way it’s shaping up seems to create a lot of complexities that just make it difficult to implement the exemptions. And I’m hopeful that Trump will actually ease up on some of these before any of, these changes are made. But again, we’ll see how it goes. So as with a lot of things we’re talking about, things are evolving at an in some cases at a snail’s pace, and in some cases very quickly. So what we got to do is just make sure we’re on top of it, and we’re monitoring the changes as we go.
Chris Santomassimo 29:27
So let’s take it to the next step, which is the decriminalization of recreational marijuana. So, again, as I said, at the very beginning of the presentation, what we’re talking about at the federal level is that it’s a schedule one substance that possessing it in any form and in any quantity is illegal. At the state level, what we’re seeing is a relief of that issue. Change that issue. So at the state level, what we’ve seen is decriminalization. That essentially six ounces of marijuana and your possessions are 17 grams. Hash is no longer a crime and won’t be prosecuted. No civil consequences, no criminal consequences for having it. Basically, what this means is that under six ounces aren’t is considered without an intent to distribute. So more than six, more than six, you’ve got a problem, the question I would ask too is whether or not there’s going to be robust enforcement even at that level, to be honest. But we’ll see how that goes. But this is how it is today. So what we’ve got is basically, the what I think I’ve seen here is the threshold for what is a small quantity that’s beyond regulation has been lifted from a very small amount, up to six ounces of marijuana. And if it’s going to when you talk about a substance that’s being bought, sold, or used under the state regulatory threshold, it’s going to be considered regulated cannabis that can be transferred, again, at the interest state level. And these are part of the three reform bills governor Murphy signed, I think it was in January if I’m not mistaken.
Chris Santomassimo 31:11
So this, I think, the absence of criminalization of marijuana, and now this new rope, this new attitude towards use on a recreational basis is really what I think is creating the issues for us as employers. Let’s talk about what just for a minute, what happens to people when they use marijuana. So this is the issue I mentioned earlier. And then being able to recognize the signs is difficult. Even with training, it’s sometimes difficult. But as employers, I think where we need to start is making sure that our managers can recognize it, especially in an environment that’s a manufacturing facility or a distribution facility. And in safety-sensitive positions. folks that don’t have their own experience with it certainly need to be trained even more. But these are some of the things that you see reddening eyes, dry mouth. When you talk about what you’re seeing from the outside, erratic behavior, the eye condition, I mentioned, loss of coordination, you see delayed reaction times, which I think probably feeds into that those higher accident rates that we mentioned earlier, people just aren’t able to process, you know, sensor, they are not able to process things as quickly as they normally would. Things are distorted in many cases. So things that would normally be sort of simple tasks are not so simple anymore when you’re under the influence. But again, very difficult to recognize, especially when you talk about edibles. So it’s one thing to be able to smell the smell of smoke on somebody who smoked marijuana. And then in the recent past, it’s a whole different ballgame. When you talk about edibles, which have in many cases, the same, same impact on your employees as smoking marijuana. And when you talk about edibles as well, there’s going to be a delay in the impact of the edible on the body. Because what you know is that when you ingest something, it’s going to take maybe half an hour or so to get from the stomach into the bloodstream and have the impact the desired impact. So even if somebody were to use an edible, say, on their lunch hour, they may not they might not actually see it until at least a half an hour later when they’re in the middle of a work task. So, again, then there’s no temporal connection between the use of it in many cases where there’s going to be a delayed connection between the use of an animal and when you actually see it create the influence.
Here’s another complexity, I think it’s you know, what is under the influence actually mean in a workplace setting? or What does it mean, in general, when you talk about marijuana, I don’t think we have a good handle on what it means here in New Jersey yet. So we actually looked out to Illinois, because the Illinois statute actually has a little bit more robust way of defining it, which may be instructive to how we sort of interpreted it here in New Jersey. So it doesn’t need to include a positive drug test to show that somebody is under the influence. But employers have to be able to articulate symptoms. This kind of symptoms I mentioned on the prior slide, that lessen the employee’s ability to perform or do the duties and tasks of the job. So if an employer can articulate some of these things like erratic behavior, speech, change speech, physical dexterity issues, where they’re not where they lack their coordination, or they’re acting in an irrational way. Those are the types of things that we as employers ought to factor into our policies about We determine somebody that’s under the influence, and how and under what circumstances we take action when we see these things in the workplace. So an as an employer if we’re if we can articulate, and if a manager can articulate these items, that would give us the ability to take action against somebody who’s under the influence in the workplace, even without a positive drug test.
Chris Santomassimo 35:27
And I think, you know, what makes it a little bit more complicated to is, when you start to factor in the medical marijuana usage, like in this Rhode Island case that we have got that we’ve looked at. So what we’re starting to see a little by little around the country are cases in which people have sued their employers because they’ve been terminated for either refusing to submit to a drug test or because they showed a positive drug test. This Colpitts case, in particular, comes out of Rhode Island. Somebody who had Colpitts was an employee at wb Mason who actually had an on-the-job accident. And under the company’s policy was subject to a drug test, when he was questioned by the supervisor and his branch manager, and told the ad to go for a drug test and following the accident, you got agitated, which is one of the symptoms that you would tend to see. But he, but then he then disclosed for the first time that he had used medical marijuana, and would probably test positive for marijuana if he was forced to test you. And once he arrived at the test facility, he actually refused to be tested, that we agreed to an alcohol test which came out negative. But because of this whole situation, his employment was terminated. And in particular, he was terminated because he violated company policy on the drug test. So in this particular case, it’s important to notice that the request was based on reasonable suspicion, because because of his behavior. And the fact that the complicating factor here is that the employee did not tell his employer about the medical marijuana usage. So I couldn’t tell you exactly how that factor plays into the ultimate decision. The unfortunate part of the Colpitts was actually using for marijuana, if not for PTSD, I believe related to some military service. So in this particular case, the court actually found against the employee and allowed the termination to consent to lead to termination to stand. But this is the reason I bring up this case, as it shows just the difficulty of sort of balancing all of these different factors, this particular employee failed to disclose the male medical marijuana usage. He, based on what we read, in the case, he appeared to have a good faith basis to use it, it was prescribed to him, it was for a legitimate condition, but failed to tell his employer and thereby just prevented the employer from doing that balancing that I’m talking about. So what we might have had is some ability to sort of accommodating the usage, but because of the failure to disclose the employer never had the chance to do it. And I think that his failure to disclose was probably not only based on the company policy but also, you know, based on the reluctance of people who were using it even for medical purposes to tell our employers unless they absolutely have to. So this is this, I think creates yet another level of complexity in terms of how you manage these cases in the workplace. When you talk about the New Jersey situation, this regulatory commission that I mentioned earlier, that we’re getting into started to meet next week, is going to establish standards for identifying impairment, but we just don’t have those standards yet. But what we’re looking at right now, or at least the current state of affairs is that the scheme would require employee employers to engage what’s known as a workplace impairment recognition expert or a wire. So the wire this person that assigned is assigned this task would be called to assess the workers perceived impairment. So it’s, it’s suggesting to me that you’re going to have, you know, some third party that you’d call in, in response to a, you know, a suspected case of marijuana usage among your employees, and get that person to make the assessment. What I think what it’s doing is sort of taking the issue out of the added employers and out of the managers’ hands and putting it in the hands of a third party, exactly how that’s going to work out though and how it’s going to be administered. Nobody knows at the moment. But what we do know from you know, from the high-level proposal is that if the wire concludes that the person is under the influence, and if there’s a drug test following the assessment, then the employer can take the adverse employment action But again, what we’re seeing is that it’s taking a lot of the controller, the employee, out of the hands of the managers, which, to me as a, as an employment lawyer is pretty concerning for sure.