Pub. 19 2020-2021 Issue 4

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S 17 new jersey auto retailer W W W . N J C A R . O R G Dealerships should use this time to consider whether a drug-free workplace policy should be incorporated into their policy manuals. Initially, dealerships must consider the employees’ category and the nature of their jobs before creating a one-size-fits all policy. Employee Drug Testing The law gives dealerships discretion to conduct employee drug tests under certain circumstances. For example, the bill express- ly allows drug testing based on a reasonable suspicion that an employee is under the inf luence of cannabis on the job. The act’s wording means dealerships must consider drug testing meth- odology as part of a drug testing policy. At a minimum, the bill requires a test that produces scientifically reliable results, which suggests using methods such as a urinalysis, blood sampling or saliva testing. These three methods detect prior use of cannabis but not necessarily current impairment. Given how slowly the human body metabolizes cannabis, an applicant or employee may test positive for cannabis even weeks after a single use and absent of any impairment signs. For this reason, new tests, such as can- nabis breathalyzers and digital sobriety tests, are being developed to test current impairment. Dealerships with labor contracts may have to negotiate new employee testing procedures with the unions to avoid violating labor laws and the labor agreement. The law also requires a physical examination of the individual as a condition of assessing impairment. The examination must be conducted by a qualified individual who meets the training man- dates for a so-called Workplace Impairment Recognition Expert Certification. This individual will be certified after completing training on detecting or identifying use and impairment by can- nabis or other intoxicating substances. By using this certification procedure, the bill aims to protect employees and applicants from adverse employment actions but still give dealerships f lexibility not to hire an impaired applicant, or to discipline an impaired employee, under defined circumstances. Dealerships will need to identify one or more individuals to be trained for this purpose. The requirements will be more fully defined and detailed by the regulations to be provided by the Cannabis Regulatory Commission at a later date. Although these provisions of the law will be effective immediately, they will not become opera- tive until the Cannabis Regulator Commission issues its initial rules and regulations. Medical Marijuana: The Wild Decision Dealerships must also be mindful of their obligations to individ- uals with disabilities who use medical marijuana. Disciplining an employee solely for testing positive for cannabis may expose the employer to liability under the New Jersey Law Against Dis- crimination ( NJLAD ). A recent New Jersey Supreme Court case ( Wild v. Carriage Funeral Holdings ) illustrates what is at stake. In Wild , a funeral director was terminated from his job after testing positive for cannabis. He filed an NJLAD claim alleging that his employer failed to accommodate his nonworkplace use of medical marijuana for his cancer treatment. The trial court initially dismissed the employee’s complaint, finding that an employer is not required to accommodate the medical use of cannabis in any workplace. The Appellate Division reversed the trial court’s decision and found the employee was not seeking a reasonable accommodation to use medical marijuana in the workplace but rather sought an accommodation to use his prescription medication away from his job. Accordingly, the Appellate Division concluded the employee’s NJLAD failure to accommodate the claim should proceed in court. Then in 2020, the Supreme Court affirmed the Appellate Divi- sion’s decision and clarified two points. First, the court clari- fied there is no requirement to permit an employee to operate a vehicle or heavy machinery when the employee is under the inf luence of cannabis. Second, the court explained an employ- ee’s use of medical marijuana is authorized by law, and there- fore, may be protected under the NJLAD if used away from the workplace. The Wild case lesson is that, prior to disciplining an employee who tests positive for cannabis use, employers should first confirm whether the employee has a legitimate medical explanation for using cannabis. Bottom Line As the use of cannabis becomes more acceptable and more available throughout the United States, modernizing a work- place drug policy is something every New Jersey dealership should prioritize. For additional guidanceon cannabis in theworkplace, or for assistance inupdating and revising your employeehandbook andworkplacedrug policies, please contact Dina Mastellone, apartner inGenovaBurns' HumanResources Counseling andCompliance PracticeGroupat dmastellone@genovaburns.com, or Jennifer Roselle, Esq., counsel in the firm’s Cannabis, Labor, HumanResources Counseling andCompliancePracticeGroupat jroselle@genovaburns.com .