MAYS LANDING — As more New Jerseyans fall victim to the opioid epidemic, participate in the state’s medical marijuana program and look to tap into the legalization of recreational marijuana in the near future, workplace legal issues are bound to complicate things, experts say.
National employment attorneys, state drug experts and representatives of local prevention organizations said Wednesday that drugs and medications, even those that can be prescribed legally, pose problems to the state’s employers and workforce as laws and policies remain in a gray area.
“We know that about 70 percent of people who abuse substances are employed,” said Angelo Valente, executive director of Partnership for a Drug-Free New Jersey. “Because that can have a harmful effect, it’s paramount that businesses have plans in place to maintain a drug-free workplace.”
Partnership for a Drug-Free New Jersey held its 21st statewide seminar, Legal Issues of a Drug-Free Workplace, on Wednesday at the Mays Landing Country Club, where more than 60 business owners, human resource managers, compliance experts and others looked for guidance on how to keep up with fast-paced changes to state laws.
The seminar was held in partnership with Join Together Atlantic County and the U.S. Drug Enforcement Administration, New Jersey Division.
Before even thinking about the problems that may emerge for employers if New Jersey legalizes recreational marijuana, experts said the focus has been on employees who may be suffering from addiction or who use medical marijuana.
“It’s a strange time we’re in,” said Nicholas Kolen, assistant special agent in charge of the U.S. DEA’s state division. “You don’t know who may be abusing prescription drugs and functioning. Someone driving machinery kills somebody and when their drug test comes back, you find out they were high as a kite.”
Nancy Delogu, an attorney and national expert on drug-related employment and discrimination law, said states with medical marijuana programs have struggled to create solid employment protections for patients, outside federal discrimination law.
Many states, including New Jersey, also lack defined policies on what employers can and cannot do in regard to testing, hiring and firing practices with people who use marijuana for medicinal or recreational purposes, she said.
“Quest Diagnostics recently found that we’re at a 10-year high of positive drug tests in the workplace,” Delogu said. “Opioid addiction is so significant that it is affecting American competitiveness. There are a lot of people out there who can’t hold a job right now.”
Delogu said employers have to be careful when mandating drug testing or firing someone, because that person may be protected under discrimination laws or have grounds to file civil lawsuits.
At the same time, employers have to protect themselves by putting policies in place that won’t make them liable if employees hurt themselves or others on the job while impaired by a drug or medication, legal experts said.
“Employees may think it’s legal to use in any way, so whatever your drug policy is, make sure you communicate it very well,” Delogu said.
Roseanne Scotti, state director of the Drug Policy Alliance, said she would interpret current medical marijuana legislation in New Jersey to mean program patients are protected from workplace discrimination, but it hasn’t always played out that way.
Scotti hopes that new legislation introduced this week will clarify workplace protections for program patients and also provide better guidelines for when employers should and should not take action against a worker for medicinal drug use.
The problem then for employers is figuring out how to identify when someone is impaired on the job, and that’s difficult when it comes to marijuana or prescription opioid use, Delogu said.
“If there’s an impairment issue, employees have the right to protect themselves, but if you take a doctor-recommended medication, does that mean you should lose your job?” Scotti said. “I’m sure there are employers who don’t want to take that adverse action.”