Up In Smoke: After NJCREAMMA, Can Employers Enforce Drug-Testing for Non-CDL Holders?

The recreational use and sale of marijuana was first legalized in the state of Colorado in 2012. Since then, 19 other states have joined their ranks in terms of recreational use, with a total 38 states, plus Washington, D.C., Puerto Rico, and Guam allowing the medical use of marijuana. However, as most people know, the use, sale, and possession of any cannabis or cannabis-derived product with more that 0.3% tetrahydrocannabinol (THC) is illegal in the U.S. at the federal level. These state vs. federal discrepancies create something of a legal paradox.

Marijuana legalization is creating the same kind of problem regarding what to do about professional drivers who test positive for marijuana. For CDL drivers, it’s easy. It is prohibited for CDL drivers to use marijuana under any circumstances, even if the substance is legal in the state in which they reside. Even if a driver consumes a prohibited cannabis product in their off hours in a state where it is legal, if they test positive for it later, they may still be in violation of the Department of Transportation’s zero-tolerance policy at the federal level.

For non-CDL drivers, the employer testing is optional. However, if a driver with a CDL license tests positive for marijuana use, they are also prohibited from driving non-CDL vehicles until they pass the return-to-duty test: another drug test administered under direct supervision. Does that all sound confusing? That’s because it is.

Add to this already tangled web of marijuana laws and efforts to keep the roads safe from drivers under the influence the New Jersey Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (NJCREAMMA), passed in February of 2021. Among other things, NJCREAMMA prohibits employers from taking adverse employment action against employees who test positive for cannabinoid metabolites in their blood or other bodily fluids.  In theory, this means that an employer cannot refuse to hire, fire, or discipline an employee who has been shown to have used cannabis. However, NJCREAMMA also upholds the right of employers to maintain a drug and alcohol-free workplace. Therefore, the regulation allows employers to make rules regarding the consumption, use, or influence of marijuana or marijuana products while at work.

At the time of the Act’s original issuance, employers could require employees to submit to a drug test under the following circumstances:

  • Upon suspicion of impairment from cannabis/cannabinoid substances while performing work duties
  • Upon finding any observable signs of marijuana/cannabinoid use at work
  • Following a work-related accident

Under NJCREAMMA, the term “drug test” has been redefined to mean a process using reliable, scientific drug-testing methods administered at work, during work hours (blood, urine, saliva tests) AND an evaluation of person certified as a Workplace Impairment Recognition Expert (WIRE). If both the bodily fluid test and the WIRE evaluation show the employee is under the influence during work hours, the employer may then take adverse employment action. The problem? The state had yet to issue guidance or training protocols for the WIREs.

To that end, the state issued interim guidance in September of 2022 until WIREs can be identified and trained for each workplace. The interim guidance essentially upholds the previous legislation regarding prohibition of adverse employment action unless evidence-based documentation of physical signs of cannabis use or signs of impairment are present. This stop-gap guidance also provides suggestions to help identify signs of impairment due to marijuana use, according to SafetyNews Alert.

California has also recently passed similar legislation preventing adverse employment action against employees who test positive for cannabinoid metabolites. The New Jersey and California laws do not apply to those in certain industries (including CDL holders, as well as federal agency contractors and grantees) and cannot preempt any state or federal laws that require a clean drug test as a condition of employment. However, non-CDL drivers can theoretically use cannabis outside of working hours within these states.

Drug test manufacturers and concerned employers are looking for ways to test for actual impairment on the job, such as employee tests against their own baseline performance and tests for the presence of active THC, the compound that creates the high, in the blood. Until these testing methods have been established, employers must keep a watchful eye out for signs of employee impairment in non-CDL drivers in New Jersey and California.

Disclaimer: This document and any discussions set forth are for informational purposes only, and should not be construed as legal advice.

Back To School Safety Tips for Drivers

The laid-back days of summer are almost over. Over the next few weeks, most schools in the U.S. will be resuming classes for the fall. It’s a time of exciting new beginnings for teachers and students, but it also is a time of greater headaches for drivers of all types. Carpools and buses will soon be flooding the streets again, adding new times of high traffic. Seasoned drivers are likely fully aware of the dangers of changing weather such as earlier darkness, slippery leaves, ice, and snow. However, unless you currently have children attending school, a few school year changes to road safety may not be as front-of-mind. Here are a few safety challenges to watch out for as students head back to classrooms.

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Drive With Pride; Set Your Cell Phone Aside: How to Avoid Distracted Driving with Mobile Settings

A Preventable Danger

As a driver, you have been given a huge responsibility. Everyone is counting on you to get the goods to the proper destination quickly and safely. You take safety seriously, but even the most experienced drivers can sometimes get distracted. The number one distraction for drivers today? Our cell phones. Even in hand-free mode, multiple studies have shown that drivers could be missing up to half of the visual stimuli around them.

Here’s a disturbing statistic for you. According to the National Highway Transportation and Safety Administration (NHTSA), taking your eyes off the road for a single text while traveling 55 MPH is equal to driving with your eyes closed for the length of an entire football field. Imagine your family members and loved ones surrounded by people driving with their eyes closed at high speeds, perhaps even in a large commercial vehicle. Talk about a sobering reminder of the importance of staying focused while driving!

The NHTSA reported that 3,142 people were killed in distracted driving accidents in 2019, accounting for 8.7% of all crash fatalities that year. Because of the high risk involved, handheld devices have been banned for drivers of commercial vehicles since 2011.

To put it simply, multitasking, especially while driving, is a myth. The human mind simply cannot devote equal attention to multiple tasks at the same time. Any task that takes your mind off the road should be avoided if possible. Not only is distracted driving a major safety concern, it also carries hefty penalties, which include the following:

· Up to $2,750 in fines per offense for drivers

· Up to $11,000 in fines for employers who allow or require drivers to use handheld devices

· Possible driver disqualification for repeat offenders

· Negative impact on Safety Measurement System (SMS) results

What actions count as using devices illegally?

According to the Federal Motor Carrier Safety Administration (FMCSA), you may be fined for the following actions:

· Using at least one hand to hold a mobile phone to make a call

· Dialing a mobile phone by pressing more than a single button

· Reaching for a mobile phone in a manner that requires a driver to maneuver so that he or she is no longer in a seated driving position, restrained by a seat belt

Staying in touch while avoiding distracted driving

Now you understand why distracted driving is a problem. But how can you stay in touch for important messages or calls while still maintaining a safe focus on the road? Luckily, your mobile phone can actually help with some special setting features.

For Apple Users:

Set up the Driving Focus to silence or limit messages and other notifications. Just go to Settings, then Focus. Tap the + sign in the upper right-hand corner and select “Driving.” You can customize the Driving Focus feature to allow specific contacts or allow emergency notifications. Through Driving Focus, you can also automatically share with others that your notifications are silenced so your contacts know you are waiting to respond until you safely reach your destination, or choose an auto-reply to let contacts know you are unavailable. Driving Focus can be set up to turn on automatically for a “set it and forget it” option that always keeps your driving free of mobile phone distractions.

For Android Users:

For every phone with Android 9 or newer, users can set up Focus Mode. Go to Settings, then Digital Wellbeing. You can also search “Focus Mode” under Settings. From there, you are presented with a list of distracting apps. You can choose which ones to silence in Focus Mode and which ones to leave active. Focus Mode can also be added to the Quick Settings menu to more easily turn it on and off.

With just a few taps, you can do your part to keep the roads a safer place for all drivers. You can also spread the word about the dangers of distracted driving to other drivers, your friends, and family. As awareness increases, it is our hope at Trillium Driver Solutions that safety increases as well.

More Than 40% of U.S. Workers Suffer From This. Are You One of Them?

As if the holidays weren’t a whirlwind enough on their own, the new year always brings with it a renewed list of projects, tasks and responsibilities no matter what your line of business is. So it shouldn’t come as a surprise that more than 40% of U.S. workers are sleep deprived. What’s worse? Nearly 13% of all workplace injuries in the U.S. may be attributed to fatigue. With stats like that, here’s what you need to know to stay safe in the workplace and help your colleagues do the same.

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The Most Expensive Workplace Injuries

While workplace injuries and illnesses cost employers an estimated $170 billion every year, the costs among them vary greatly. We often hear of companies complaining about the costs of PPE and safety equipment in roles where they don’t suspect the injuries to occur or not understanding the costs of them when they do. Regardless of cost, the important factor is the wellness and safety of the employees.

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How to Halt High Driver Turnover from the Start!

With the Driver shortage as prevalent as ever, a new study by Stay Metrics is showing that new Driver retention is also a huge issue for carriers nationwide. But what could be causing a large percentage of Drivers to jump ship before hitting the 90 day mark?

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Tis’ the Season for Seasonal Work!

As we have officially entered the Fall season that can only mean one thing, the holidays are just around the corner. With the holiday season comes a whole new opportunity for those of you looking to make a little extra cash! Retailers, wholesalers, distributors, etc. are all looking to increase their workforce during this time of year to help with the influx of demand. But, is a seasonal position right for you?

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It’s Driver Appreciation Week 2018!

Yesterday kicked off Driver Appreciation Week across the country. With E-commerce continually on the rise, there is no more important time than now to thank Drivers and Logistics professionals for their hard work and commitment to getting the job done!

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Back To School = Safety Reminders for ALL Drivers!

The time has come for everyone who uses the roads to once again start thinking about the fact that kids are getting ready to go back to school. That means more cars on the roads, school buses in full operation and an army of young pedestrians crossing roads on the way to school. Nearly 22 million students will be getting onto buses this late summer and fall.

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Trillium Ranked 26th Largest Industrial US Staffing Firm in 2018!

Let’s keep the good news rolling! René Poch founder and CEO of Trillium Staffing, just announced that Trillium has been ranked by Staffing Industry Analysts as the 26th Largest Industrial US Staffing Firm for 2018!

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