NJ marijuana legalization: Should employers drop drug tests?

Employers would have a tougher time disciplining medical marijuana users who test positive for cannabis under a bill introduced by New Jersey lawmakers.

The bill, sponsored by Assembly members Pamela Lampitt, D-Camden, and Reed Gusciora, D-Mercer, has prompted some experts to urge employers to rethink testing workers for the drug altogether, noting a positive test isn't proof of impairment.

"It doesn’t suggest that person is under the influence at that moment, and employers that utilize the test might quite unnecessarily be limiting the pool of candidates,” said Sidney Seligman, a former human resources executive who now is an instructor at Rutgers University's School of Management and Labor Relations.

If passed, it would cover an increasing number of New Jerseyans. Gov. Phil Murphy last week added five conditions to a list that can be treated with marijuana. He has been advocating legalizing recreational marijuana, too.

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The bill is part of a shifting landscape. New Jersey would join more states that have reined in employers' drug testing programs. It still faces opposition from employers who want to keep their workplaces drug free.

But it also puts workers who use marijuana on a path to join the mainstream, following a road taken by workers with piercings and tattoos before them.

"It’s a very profound policy question," said Lewis Maltby, president of the National Workrights Institute, a Princeton advocacy group. "I don’t know how an employer is going to justify treating marijuana different than alcohol, but it's up to them."

Drug-testing nation

Of course, there is one big distinction between marijuana and piercings, tattoos and alcohol. Recreational use of it isn't legal in the eyes of the federal government or New Jersey.

Companies typically test job applicants and employees for five classes of drugs: marijuana, cocaine, opiates, amphetamines and PCP.

Drug tests in the workplace caught on as part of President Ronald Reagan's war on drugs campaign that included a flurry of executive orders and laws encouraging federal workplaces and federal contractors to be drug free.

Congress in 1991 required all transportation companies to test their safety-sensitive employees for drugs.

Even though it wasn't required, the private sector followed. It occasionally caused conflict. James Hennessey was working as a lead pumper at Coastal Eagle Point's oil refinery in Gloucester County in 1986 when he was chosen for a random drug test.

He tested positive for marijuana and was fired. He sued in part claiming it was a violation of his privacy.

The court sided with Coastal Eagle, saying Hennessey had a right to privacy, but public safety concerns outweighed it.

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By 1997, drug testing wasn't just for Olympic athletes anymore. Some 81 percent of employers conducted some form of drug tests, according to the American Management Association, a trade group.

The result? Rates of positive drug tests plummeted from 13.6 percent in 1988 to 3.5 percent in 2012, before increasing to 4.2 percent in 2016, according to Quest Diagnostics, a Madison-based lab.

"I think it's a couple of things," said Phil Kirschner, the former head of the New Jersey Business and Industry Association who now is lobbying against the legalization of marijuana. "One is the safety issue. They want to make sure that their employees are cognizant of it."

"The other thing is a very practical thing," he said. "If you fail a drug test — if that's the last thing you have to do before you get an offer — I don't think that speaks well of your discipline, your responsibility, things like that. You know it's coming and the job depends on it, and you fail it. I think employers would be wary."

Quest officials say they have seen little change in the drug testing landscape.

"Nationally we have not really seen the needle move at all," said Barry Sample, senior director of science and technology at Quest.

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Marijuana: Not like the others

Cannabis is the biggest source for positive drug tests. In New Jersey, about 2.1 percent of employee drug samples came back positive for marijuana, about the same as the national rate and twice the rate of the next most common category, amphetamines.

But as more states legalize marijuana, employers increasingly face the question of whether an employee's cannabis use is grounds for disqualification.

There are economic issues. The economy is at near full employment. Companies are fighting for skilled labor. If they rule out marijuana users, they are excluding millions; more than half of Americans over 18 have used marijuana, and 22 percent are current users, according to a Yahoo News/ Marist Poll conducted last year.

"You might wind up with results you don't want," said Ian Meklinsky, a labor and employment attorney at Fox Rothschild in Princeton, referring not to a negative test, but a positive one. "If a person comes to work and is a great employee, do you really care if they smoke pot on the weekend?"

Advocates for the legalization of marijuana say there are fairness issues, too. Unlike other drugs and alcohol, a positive marijuana test doesn't necessarily mean the worker is impaired, they said.

Marijuana's mind-altering high can last for a few hours, but TCH, the ingredient that causes it, can stay it a user's system for a month or so.

"Cannabis has been legal (in other states) for a number of years now and we haven’t seen an indication that workers in Colorado are less productive than any other state," said Kris Krane, president and co-founder of 4Front, a Boston-based cannabis investment company. "We are fine as a society saying it's OK to legalize alcohol, but we don’t accept people drinking on the job. It comes down to impairment, not whether or not someone uses alcohol in their private time."

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NJ tiptoes into the field

They are finding more support in states. Maine voters approved a recreational marijuana law in 2016 that prohibits employers from refusing to hire someone 21 or older for using marijuana on their own time.

New Jersey could take a step down that path. Under the Lampitt and Gusciora bill, employers who receive federal contracts would be exempt. And they could continue to discipline employees who possess marijuana in the workplace.

But they also would need to prove that the employee who tests positive was impaired at work.

Not everyone thinks it's a good idea. "For a multitude of reasons, ranging from safety to productivity to liability, New Jersey employers should have the ability to maintain a drug-free work environment," said Jeanette Hoffman, spokesperson for New Jersey Responsible Approaches to Marijuana Policy, which opposes expanded legalization.

"Employers shouldn’t be penalized for keeping drugs — whether legal or illegal — out of the work force," she said.

Few, including Rutgers' Seligman, would dispute that employers should be able to take action against workers who are stoned on company time.

But employers asking themselves whether they want to continue to test workers for marijuana use have a business question to answer, he said.

"Are you unnecessarily restricting your pool of candidates to hire, to no good end?" Seligman said.

Michael L. Diamond; @mdiamondapp; 732-643-4038; mdiamond@gannettnj.com