Businesses look to navigate marijuana policies in the workplace

Lesley Gabel is a CEO with 17 employees at a company with a zero-tolerance policy for drugs, including marijuana. Businesses are scrambling, with medical marijuana use that’s already legal in New Jersey and a recreational use bill reportedly on track, according to the governor.

“I think is it sooner than later. I think the Senate president said something in the vein of trying to bring it to a vote on Oct. 29, so that’ll be later this month,” Gov. Phil Murphy said Monday in a Facebook Live.

“We have extreme concerns, and there is no protocol. There’s no set policies on what the guidance is. And because, with marijuana use, it affects the brain. There’s no proper test or screening if someone is, or isn’t, under the influence, especially for employees. So how do you monitor that? What do you look for?” asked Gabel.

Business executives also wonder about random company drug screenings to detect marijuana use.

“Our policy is that we’re allowed to drug screen you. And if it’s legal, we have other issues with that, about what would be the amount that’s allowable? Because it does stay in their system for up to 30 days,” said Janet Kuebler, owner of Right at Home, a senior care services company.

CEOs brought those questions to a panel Tuesday at Robert Wood Johnson University Hospital in Somerset.

“In New Jersey, there’s no protection for employees. In fact, employers don’t have to make an accommodation for employees in the workplace with regard to medical marijuana,” attorney John Kutner from Weber Gallagher, said.

Kutner specializes in marijuana law. He says companies need to know that New Jersey, unlike eight other states, has no anti-discrimination provision protecting employees who are medical marijuana cardholders.

“There was a recent federal district court case wherein the judge ruled in favor of the employer, against the employee, who brought a case under the New Jersey law against discrimination. They found they didn’t need to make the accommodation for the employee,” Kutner, from, said.

Sen. Joe Vitale has sponsored legislation that would make it “unlawful to take any adverse employment action” against an employee who is a registered medical marijuana patient “based on either: (1) the employee’s status as a registry identification cardholder; or (2) the employee’s positive drug test for marijuana components or metabolites.”

It’s still in committee. Another sticking point for businesses is that the federal government still classifies marijuana as a Schedule I illegal drug with no approved medicinal purpose.

What would happen if it’s changed to Schedule II?

“Then we can do the trials,” said Dr. Harris Shaikh, a pain management specialist with RWJ University Hospital Somerset. “We could actually test it. And you know, instead of in the realm of politics, why not let the scientists go at it like they do with every other compound? You know, do the trials and let the evidence prevail.”

“Right now, we have funding from the federal government, where it is not an approved substance, so it puts us in conflict. So right now we would have to talk to an attorney,” Gabel said.

So companies still walk a legal tightrope between state and federal marijuana laws. A Colorado congressman’s drafted legislation to make it a states’ rights issue, but action on that is months away.