By Jeryl L. Olson, Rebecca A. Davis, Patrick D. Joyce, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) issued the 2021 Multi-Sector General Permit (“MSGP”) for industrial stormwater discharges on January 15, 2021. The 2021 MSGP became effective on March 1, 2021 and replaces the 2015 MSGP for facilities in states with EPA-managed NPDES Programs. 

The 2021 MSGP replaces the 2015 MSGP, which expired and was administratively continued on June 4, 2020. Beginning March 1, 2021, operators in affected jurisdictions  must submit a new Notice of Intent (“NOI”) to obtain authorization to discharge in accordance with the deadlines set forth in Part 1.3.3. of the 2021 MSGP. Table 1-2 of the 2021 MSGP lists NOI deadlines. For example, facilities with existing coverage under the 2015 MSGP must submit their NOI by May 30, 2021. Affected jurisdictions include:

  • New Hampshire, New Mexico, Puerto Rico, Massachusetts, and Washington, D.C.;
  • Idaho, until July 1, 2021, when NPDES permit management will transition to the Idaho Department of Environmental Quality;
  • S. territories except the Virgin Islands;
  • Federally operated facilities in Colorado, Delaware, Vermont, and Washington;
  • Most Indian country lands; and
  • Other designated activities in specific states (e.g., oil and gas activities in Texas and Oklahoma).

While limited to the referenced affected jurisdictions for now, the changes incorporated in the 2021 MSGP will affect all state programs eventually, when states renew their industrial stormwater permits; several states will upgrade to the new MSGP before the end of 2021.

The 2021 MSGP requires industrial facilities in 29 different industrial sectors to implement control measures and develop and make available to the public site-specific Stormwater Pollution Prevention Plans (“SWPPP”) to comply with NPDES requirements specific for each sector.  New provisions in the 2021 MSGP include the following substantive technical, quasi-technical and administrative changes which include the following and eventually will impact all permittees:

  1. The 2021 MSGP includes new or updated technical provisions:
  • changes in frequency and reporting obligations for both indicator monitoring and benchmark monitoring;
  • adds monitoring of polynuclear aromatic hydrocarbons (PAHs) for certain facilities;
  • requires monitoring in the fourth year of the permit, even where benchmark monitoring has been allowed to be discontinued;
  • requires increased monitoring for discharges to impaired waters;
  • requires corrective actions in accordance with certain steps (“tiering”), first evaluating and implementing controls based on the SWPPP, then escalating to include additional control measures, and finally imposing permanent structural controls, and even treatment controls; and
  • requires enhanced stormwater control measures in areas known to be impacted by weather conditions including flooding, hurricanes, storm surges, in advance of weather events. Measures might include reducing inventory of materials stored outside, or elevation of outside storage of materials.
  1. There are also new quasi-administrative changes to the MSGP including:
  • filing of and public disclosure of the facility SWPPP (it must now be uploaded with the NOI);
  • site signage to alert the public that the site is subject to the 2021 MSGP and to alert the public of the existence of the SWPPP; and
  • public disclosure of additional implantation measures (AIM), as may be required by an AIM triggering event, such as an exceedance of a benchmark threshold for four consecutive quarters.
  1. Finally, there are administrative changes to the MSGP:
  • the process, and the terms and conditions of the general permit, have been made more “user friendly”;
  • the directions and permit have been updated to use “plain language” so that the requirements of the permit are clear to users, enforcement authorities, and the pubic;
  • EPA has reportedly improved the security of the NPDES e-Reporting Tool (“NeT”) to “ensure organizations only have access to their permit forms and information.” NeT users will now “own,” or have access to specific NPDES identification information (“ID”), to prepare or submit: Changes to NOIs, Notices of Terminations, or Annual Reports associated with that NPDES ID.

Because of the new monitoring and control requirements, signage requirements, requirements to upload SWPPPs with the NOI,and requirements to make SWPPPs public, it is important that our clients be aware of these changes as they are implemented in their state.

Feel free to reach out to the authors, one of Seyfarth Shaw’s Environmental Compliance, Enforcement & Permitting team members, or your Seyfarth attorney with any questions on this important topic.

By Brent I. Clark, James L. Curtis, Adam R. Young, A. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The White House announced on Friday that Douglas L. Parker will be its nominee for the head of federal OSHA.

Mr. Parker previously served in the Obama Administration as Deputy Assistant Secretary for Policy to the Mine Safety and Health Administration. Mr. Parker also served as a member of the Biden-Harris transition team, where he focused on worker health and safety issues, and has held positions as a senior policy advisor and special assistant at the Department of Labor. An attorney, Mr. Parker previously worked as in-house counsel at a labor union.

Most recently, he has served as the Chief of the California Division of Occupational Safety and Health since 2019. In his tenure at CalOSHA, the Agency has aggressively enforced an overbroad and hastily-issued COVID-19 emergency temporary standard, using COVID-19 as a vehicle to force employers to engage in widespread surveillance testing, and to legislate by regulation progressive priorities on wage and hour issues, far beyond the scope of his agency’s safety and health mission.

We anticipate Mr. Parker will pursue labor union priorities at federal OSHA, in conjunction with recently-confirmed Secretary of Labor Marty Walsh, as well as aggressive enforcement on a range of controversial issues. While Mr. Parker may not have an official role in issuing a federal COVID-19 emergency temporary standard (ETS), depending on his nomination process and the timing of any ETS’s promulgation, employers should be aware of CalOSHA’s ETS requirements, including the testing and employee benefits provisions mentioned above.

We are actively tracking whether Mr. Parker’s nomination will raise opposition in the United States Senate.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, James L. Curtis, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The CDC recently updated its Guidance on Domestic Travel During the COVID-19 Pandemic. The guidance also provides domestic travel recommendations for unvaccinated people.

Image from CDC.

The CDC recently issued updated guidance regarding travel. It is important to recognize that the CDC’s guidance on COVID-19 is not a law or regulation. However, various agencies and public health authorities have adopted some or all of the CDC recommendations, including recommendations regarding travel. Consequently, employers should consult actual laws and regulations regarding travel for their specific jurisdictions to understand requirements versus recommendations and guidance, especially employers who are considering their own travel policies.

As COVID-19 vaccinations in the United States continue, the CDC and other authorities will likely adjust their requirements and guidance to address the vaccinated population. Employers should be sure to closely track developments and make adjustments to their own policies as the risks associated with COVID-19 and travel change over time.

Domestic Travel Recommendations for Vaccinated People

According the CDC’s updated guidance, people who are fully vaccinated with an FDA-authorized vaccine can travel safely within the United States. People are considered fully vaccinated:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Individuals who have not completed the 2-week period are not fully vaccinated, so the CDC recommends continuing to take all precautions until they are fully vaccinated. The CDC also cautions that immuno-compromised individuals may need to limit travel, even if vaccinated.

During Travel

The CDC recommends that fully vaccinated travelers still wear a mask over their nose and mouth while traveling. Masks are required by federal law on airplanes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations.

Fully vaccinated individuals should also avoid crowds and physically distance, staying at least 6 feet from anyone who is not traveling with them, and should continue good hygiene practices, washing hands often or using hand sanitizer (with at least 60% alcohol) according to the most recent guidance.

After Travel

The CDC advises that vaccinated travelers should self-monitor for COVID-19 symptom, and to self-isolate and get tested if they develop symptoms. They must also abide by state and local requirements, even if it differs from the CDC’s guidance.

The CDC does not advise that vaccinated individuals (and those who had COVID-19 in the past 3 months) self-quarantine after travel.

Domestic Travel Recommendations for Unvaccinated People

If individuals are not fully vaccinated and must travel, the CDC recommends:

1. Before Travel

Get tested utilizing an FDA approved viral test 1-3 days before their trip.

2. During Travel

Wear a mask over their nose and mouth. Masks are required by federal law on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations.

Avoid crowds and stay at least 6 feet from anyone who is not traveling with them.

Wash hands often or use hand sanitizer (with at least 60% alcohol).

3. After Travel

Get tested utilizing an FDA approved viral test no sooner than 3-5 days after travel AND stay home and self-quarantine for a full 7 days after travel.

  • Even if the individual tests negative, they should stay home and self-quarantine for the full 7 days.
  • If the test is positive, the individual must self-isolate to protect others from getting infected.
  • If the individual decides not to get tested, they should stay home and self-quarantine for 10 days after travel.

Regardless of whether the traveler seeks a test after travel or not, they should avoid being around people who are at increased risk for severe illness for 14 days, self-monitor for COVID-19 symptoms (isolate and get tested if symptoms develop), and follow all state and local recommendations or requirements. Some state and local requirements do not allow travelers to test-out of self-quarantine.

Visit your state, territorial, tribal or local health department’s website to look for the latest information on where to get tested.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The National Safety Council (NSC) released an update to its annual list of OSHA’s top ten cited standards. The list provides a starting point for employers reviewing their own safety programs. 

As in years past, the National Safety Council (NSC) updated its top ten list of most-cited OSHA regulations for 2020. As usual, the top ten list identifies fall protection, hazard communication, scaffolding, lockout/tagout (LOTO), and respiratory protection as major sources of citations. Because these top ten cited regulations remain consistent over the years, with only minor shifts among the various regulations, OSHA often focuses on hazards associated with the top ten during on-site inspections.

NSC combed through OSHA citations through 2020 and found the following to be the most-cited for Serious classifications, in Construction or General Industry:

From NSC.

NSC also analyzed at the top ten standards for willful violations:

From NSC.

Employers should use the top ten list as a reminder to emphasize these areas during new employee orientation and existing employee refresher training. Employers should also realize that OSHA will be looking for violations in these areas when they visit your worksite.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Jeryl L. Olson, Rebecca A. Davis, Patrick D. Joyce, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The ASTM is in the process of updating its Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.

A Phase I Environmental Site Assessment is a report, following ASTM Standards, that identifies recognized environmental conditions (RECs) on real property to evaluate environmental risks and liabilities associated with the property. It is often referred to as a “Phase I ESA” or simply a “Phase I,” and is an important part of the real estate due diligence process. Completing the Phase I process is necessary if a landowner or purchaser wants to claim the “innocent landowner, ” bona fide prospective purchaser, or other third party defenses available under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for purchasers, and to a lesser extent tenants, of real property.

The current (E1527-13) version of the ASTM Phase I standard, used by EPA and the states to determine whether sufficient environmental due diligence has been conducted for a purchaser to utilize CERCLA defenses, is scheduled to be updated this year. While the revised standard has not been finalized, several possible changes of potential significance have been proposed.

The key areas of the ASTM standard where we anticipate significant revision include:

  1. Addition of a new “non-scope” section. Non-scope provisions are those areas of environmental inquiry that, while potentially helpful to a prospective purchaser, are not explicitly required in order for the purchaser to use the CERCLA defenses. The new non-scope section will focus on “emerging chemicals of concern,” including Perfluoroalkyl Substances (PFAS). Considering the EPA’s increasing focus on PFAS, and the likelihood of more regulations respecting PFAS, having a section to discuss potential PFAS contamination at a Site would provide pertinent information to potential buyers and creditors.
  2. Modifications to the protocol for historic searches. Currently, the standard requires a historic search of the subject property itself. The revisions suggest that this should be expanded to include not only the subject property, but also surrounding properties. While broadening the area of inquiry may be helpful to purchasers in terms of providing them more information about nearby properties, for sellers, expanding inquiries to adjacent properties it is problematic because it very provides an opportunity for consultants to identify offsite concerns that need further testing or evaluation. Expanding concerns to offsite properties also impacts purchasers who are financing the transaction, because heightened inquiry into offsite properties raises issues of concern for lenders that the purchaser may need to investigate further through Phase II testing.
  3. The new standard may require an analysis of how data gaps may affect the ability to identify RECs, and may require a discussion of how data gaps may be addressed through other resources. Currently, data gaps are routinely ignored unless flagged as significant.
  4. Standards for identifying RECs at service (gas) stations or dry cleaners may change. For historic cleaners and service stations, this includes a recognition that contamination is reasonably likely to be present, despite lack of any spill or release documentation. This will most certainly result in recommendations by consultants that all properties formerly associated with dry cleaning operations or service stations on site (or off-site) undergo Phase II testing.

Feel free to reach out to the author, one of Seyfarth Shaw’s Environmental Compliance, Enforcement & Permitting team members, or your Seyfarth attorney with any questions on this important topic.

By Brent I. Clark, James L. Curtis, Adam R. Young, A. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On March 12, 2021, OSHA published its COVID-19 National Emphasis Program – Coronavirus Disease 2019 (COVID-19), DIR 2021-01(CPL-03) (3-12-21).  The Directive lays-out OSHA’s policies and procedures implementing a National Emphasis Program (NEP) for ensuring that employees in perceived “high-hazard industries” or work tasks are protected from the hazard of contracting COVID-19.

Days before President Biden’s deadline for OSHA to issue a COVID-19 emergency temporary standard (“ETS”), the Agency instead announced an NEP allegedly designed to protect employees from the spread of COVID-19.

The NEP “augments OSHA’s efforts addressing unprogrammed COVID-19-related activities, e.g., complaints, referrals, and severe incident reports, by adding a component to target specific high-hazard industries or activities where this hazard is prevalent.” The NEP purportedly targets establishments that have workers with increased potential exposure to contracting COVID-19 and that put the largest number of workers at serious risk. But with vaccination numbers increasing, one might question the targeted industries in OSHA’s NEP.

For example, with many frontline workers in the healthcare industry already vaccinated and therefore at lower risk of contracting COVID-19, how does increasing inspections in this arena keep workers safe or reduce transmission of the virus?  OSHA does not appear to have incorporated the efficacy of  vaccinations into its analysis of worker safety and health, especially as new data show the efficacy of the vaccines on asymptomatic COVID-19 and transmission.

As part of the NEP, OSHA stated it will emphasize anti-retaliation by distributing anti-retaliation information during inspections and taking advantage of outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program. The Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, Jim Frederick, explained this dual purpose, stating that the “program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure.”

In a related action, OSHA updated its Interim Enforcement Response Plan to prioritize the use of on-site workplace inspections where practical, or a combination of on-site and remote methods. OSHA will only use remote-only inspections if the agency determines that on-site inspections cannot be performed safely.

While we all wait to see whether OSHA will issue an ETS, employers in target industries should be acutely aware that OSHA plans to use its current tools to address perceived COVID-related violations. To this point, OSHA has cited employers primarily under its respiratory, reporting/recordkeeping, and PPE standards. While President Trump’s OSHA referenced the OSH Act’s “General Duty Clause” as another enforcement avenue, OSHA’s COVID-19 citation tracker suggests that there have been few citations issued pursuant to that provision. It is possible that the Biden Administration could turn to the General Duty Clause more often under its NEP.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By A. Scott Hecker, Ilana R. Morady, and Brent I. Clark

Seyfarth Synopsis: On January 21, 2021, President Biden directed MSHA to consider whether COVID-19 emergency temporary standards (“ETS”) are necessary for coal and metal/non-metal mines, and if so, to issue them “as soon as practicable.”  While MSHA has not announced an ETS, it recently published new guidance regarding COVID-19 worker safety in mines, “Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19.”

MSHA’s materials echo (i.e., basically restate) OSHA’s January 29, 2021 revised guidance “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which we blogged about here.  MSHA’s guidance highlights steps operators and miners should take to ensure safe and healthy workplaces, and recommends that operators implement COVID-19 prevention programs, which MSHA – like OSHA – opines “are the most effective way to mitigate the spread of COVID-19 at work.”  MSHA lists 15 elements that effective plans should include:

  1. Assign a mine coordinator;
  2. Identify where and how workers might be exposed to COVID-19 at work;
  3. Identify measures that will limit the spread of COVID-19 in the workplace, including hazard removal, engineering controls, administrative controls, PPE, and other measures;
  4. Consider protections for miners at higher risk for severe illnessthrough supportive policies and practices;
  5. Educate and train miners on COVID-19 policies and procedures using accessible formats and in a language they understand;
  6. Instruct miners who are infected or potentially infected to stay home and isolate or quarantine;
  7. Minimize negative impacts of quarantine and isolation on workers;
  8. Isolate miners who show symptoms at work;
  9. Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the mine environment;
  10. Provide guidance on screening and testing;
  11. Record and report COVID-19 infections and deaths;
  12. Implement protections from retaliation and an anonymous process for miners to voice concerns about COVID-19-related hazards;
  13. To the extent possible, make a COVID-19 vaccineor vaccination series available at no cost to all eligible employees;
  14. Treat vaccinated workers the same as those who are not; and
  15. Consider other applicable MSHA standards.

Though MSHA does not currently have COVID-19 regulations, we understand the agency is still considering whether an ETS is necessary.  If MSHA decides to promulgate an ETS, a number of these guidance provisions will likely be part of that standard.  Consequently, operators should evaluate their compliance with these guidelines now to prepare for any forthcoming MSHA ETS.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

Seyfarth Synopsis: The Biden Administration has gotten off to a busy start with a wide array of executive actions and policy directives. In this webinar, Seyfarth subject matter experts will discuss what employers can expect regarding the enforcement in the areas covered by these directives and how that will effect business moving forward.

Topics covered will include:

  • EEO
  • Immigration Compliance
  • OSHA
  • OFCCP
  • Wage & Hour

There is no cost to attend, but registration is required.

If you have any questions, please contact Kelly Sokolowski at ksokolowski@seyfarth.com and reference this event.

By Brent I. Clark, James L. Curtis, Adam R. Young, A. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Now, after more than 80 million vaccine doses have been given out in the US, and having weathered a year of Zoom-only visits with fellow employees, clients, and customers, those who have been vaccinated are looking for direction. Obligingly, the CDC just issued its “Interim Public Health Recommendations for Fully Vaccinated People”.

Until the release of this guidance for fully vaccinated individuals, CDC had only indicated that “it’s important for everyone to continue using all the tools available to help stop this pandemic as we learn more about how COVID-19 vaccines work in real-world conditions. ” We previously blogged that CDC had released an update to its recommended guidance on Vaccines & Immunizations. The guidance provided updated quarantine recommendations that for fully vaccinated persons who “meet criteria will no longer be required to quarantine following an exposure to someone with COVID-19.”

CDC’s guidance for fully vaccinated individuals contains the following updates:

  • Individuals may gather in small groups in private residences without masks or distancing when:
    • all individuals are fully vaccinated; or
    • only one household is not fully vaccinated (all others are fully vaccinated), but the unvaccinated individuals are at low risk for developing severe disease if they contract the coronavirus.
    • fully vaccinated individuals (and all others) should continue to avoid larger gatherings.
  • Fully vaccinated individuals do not need to quarantine or get tested if they have a known close contact exposure with a COVID-19 positive individual, as long as they do not develop symptoms of infection. If fully vaccinated individuals who have known exposure develop symptoms, they must isolate themselves, get tested, and speak with their doctor.
  • However, fully vaccinated employees should be tested following an exposure if they work in “high-density workplaces (e.g., meat and poultry processing and manufacturing plants).”
  • In public, fully vaccinated individuals must continue to wear masks, maintain physical distance, and take other recommended precautions, such as avoiding poorly ventilated spaces, covering coughs and sneezes, washing hands often, and following any other protocols that are in place.

Image from CDC.

For now, CDC has not updated its guidance to allow fully vaccinated employees to go maskless while at work. As a result, employers will still need to make informed decisions about risk when developing workplace requirements, and employees will still need to follow requirements set forth by their employers, even if the employee is fully vaccinated.

While the CDC’s updated guidelines do not give the fully vaccinated permission to start living like it’s 1999 , the updates offer some hope that the end of total social isolation is near. But at the same time, Dr. Anthony Fauci warned last week that the US may soon be hit with a spike in COVID-19 cases — even though the country has administered more vaccine shots than any other nation. The recent plateau in cases from record-high post-holiday rates is actually a sign that Americans should mask up and brace for another potential boom in infections, Fauci said, while citing past coronavirus data trends at a White House press briefing.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team

By Jennifer L. Mora, Adam R. Young, and Robert T. Szyba

Seyfarth Synopsis: New Jersey recently enacted a law permitting personal, nonmedical use of marijuana for individuals age 21 and over. Separate laws decriminalize marijuana and hashish possession and set out the penalties when individuals under age 21 use or possess marijuana or hashish. Although not immediately enforceable, New Jersey employers should immediately assess the implications of the laws on their current policies and drug testing practices.

On February 22, 2021, New Jersey Governor Phil Murphy signed A21, the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (NJCREAMMA), which is enabling legislation for the amendment to the New Jersey Constitution making lawful the recreational use of marijuana in the state.  The law directly impacts employers in many ways.

  1. Employers may still prohibit marijuana and impairment in the workplace.

The law explains that employers can still maintain drug- and alcohol-free workplaces. Employers are not required to accommodate the use, possession, sale, or transfer of marijuana in the workplace and may prohibit employees from being impaired during work hours.

  1. New Prohibitions on Employment Discrimination Based on Marijuana Use Outside of Work.

The law prohibits employers from:

  • refusing to hire or employ an individual who uses marijuana, unless failing to do so would cause the employer to violate a federal contract or lose federal funding; and
  • taking any adverse employment action (e.g., refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment) against someone because they use marijuana or based solely on a positive test result for marijuana metabolites.
  1. Limitations on Drug Testing

Under the new law, employers may still conduct numerous forms of drug testing for marijuana, including:

  • Post-offer pre-employment
  • Reasonable suspicion of use at work
  • Reasonable suspicion of impairment
  • Post-accident
  • Random

However, the law limits employers’ ability to rely on these tests in making employment decisions.  The law requires that a drug test include both a “physical evaluation” and “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva.”  The “physical evaluation” must be conducted by an individual certified to provide an opinion about an employee’s state of impairment, or lack of impairment, related to the use of marijuana. The Cannabis Regulatory Commission is tasked with adopting standards for a “Workplace Impairment Recognition Expert” (WIRE), who must be trained to detect and identify an employee’s use or impairment from marijuana or other intoxicating substances and to assist in the investigation of workplace accidents.

Consequently, the new law creates a requirement similar to reasonable suspicion of impairment to support a positive drug test result for that test to be used in making employment decisions. It is unclear whether this physical evaluation requirement can be accomplished through drug testing services.  Post-accident tests often are performed on employees receiving emergency medical care or treatment, when such an evaluation may be inappropriate.

Further, unless an employer is subject to a federal drug testing requirement, such as DOT-regulated employers, pre-employment marijuana tests in New Jersey are essentially disallowed from serving as the sole basis for revocation of a job offer.  Employers arguably could continue doing the tests, but probably can revoke offer if an employee admits that they will continue using marijuana such that they are impaired at work.

Employers who continue to drug test should also consider that if an employee or applicant tests positive, the Jake Honig Compassionate Use Medical Cannabis Act (discussed here) imposes additional requirements.  For example, the employer must provide applicants or employees who test positive for marijuana written notice of the individual’s right to explain and their right to provide a “legitimate medical explanation” for the positive test result. The employee has three working days to provide such information, which can include evidence that a health care practitioner has authorized the use of medical marijuana, proof that the applicant or employee is a registered patient, or both. Or, within that same three-day timeframe, the applicant or employee can request a confirmatory retest of the original sample at their own expense.

  1. Effective Date Still Unclear

Although these requirements are effective immediately, they do not become operative and, thus, enforceable, until the Cannabis Regulatory Commission adopts rules and regulations relating to the new law. The Cannabis Regulatory Commission must issue the new rules and regulations within 180 days of enactment of the NJCREAMMA or 45 days after appointment of five members to the Commission, whichever is later.

  1. No Private Cause of Action

The law does not include a private right of action.  But, we can expect litigation in New Jersey courts, as we have seen courts in other jurisdictions allow aggrieved individuals to sue under medical marijuana laws even without an express private right of action in the statute.

  1. Decriminalization

Employers are prohibited from inquiring about or basing any employment decision on the fact that an applicant or employee has been arrested for, charged with, or convicted of certain offenses involving marijuana or hashish. Employers that violate this particular law face civil penalties imposed by the Commissioner of the New Jersey Division of Labor and Workforce Development consisting of $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each violation after that. The law is clear that it does not provide an aggrieved individual with a private right of action in the employment context.

  1. Safety Implications for Employers

The New Jersey recreational marijuana law presents hurdles for employers and their efforts to maintain a drug-free workplace.  It appears to undermine employers’ ability to discipline and discharge employees impaired by high levels marijuana, so long as that impairment is not outwardly detectable.  For individuals in safety-sensitive positions, the National Safety Council recommends a zero-tolerance policy for marijuana.  This recommendation is based on the decline in judgment and motor skills, and increase in accidents, incidents, employee injuries, and employee fatalities.  Following workplace fatalities, a large percentage of post-mortem toxicology shows evidence of marijuana impairment.  New Jersey’s new law risks undermining good faith drug and alcohol programs and employers’ abilities to protect the health and safety of employees.

  1. Next Steps for Employers

It remains to be seen whether the Cannabis Regulatory Commission will issue regulations that clarify some of the law’s unanswered questions, most importantly how the law impacts employers with employees in safety-sensitive positions. Until those regulations are adopted, New Jersey employers should consider working with relevant stakeholders and experienced employment counsel to determine whether to modify their drug testing practices, including the possibility of eliminating marijuana testing either pre-employment or for certain types of positions, provide training to managers tasked with making reasonable suspicion determinations, and determine the best person to serve as the employer’s WIRE. We will provide an update as soon as the new regulations are adopted.