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Brian Lehrer: Brian Lehrer on WNYC. This is a historic day in New Jersey, the day adult-use recreational cannabis sales begin in the States, starting at 13 different sites that were previously authorized for medical marijuana sales. After this weekend, we'll take calls from those of you who are cannabis users and, suddenly, were able to go into a store and buy it legally for the first time in your lives.

We'll do that on Monday or Tuesday probably and let the weekend happen first. We do see that people started lining up at four o'clock in the morning today, who wanted to get their legal cannabis right away. Right now on day one, we want to look at one wrinkle that's come up already in New Jersey and in other legal weed states. Can you still lose a job or a job offer for testing positive for cannabis that you use outside of work when you were not impaired on the job?

You might call it policing impairment in the workforce and policing literally and figuratively in this case. Because when acting Attorney General of New Jersey, Matthew Platkin, said that police officers would be free to partake of legal cannabis when off-duty under the current law, there were calls for provisions to bar those in what are called "safety-sensitive jobs" from its use since there's no easy way to check for impairment.

If you're just in any job like police officer where you can't be impaired, there's no breathalyzer test like there is for alcohol or for cannabis, so some people don't want police officers and others in what are called "safety-sensitive jobs" to be able to use it at all even in a legal cannabis state. Governor Murphy has indicated he would be open to such a law, but whether the legislature can pass that provision is yet to be seen.

With us to talk about the rules in New Jersey and the ones coming in New York and to put it in the national context of other legal states, I'm joined once again by Alyson Martin, co- founder of Cannabis Wire and adjunct professor at the Columbia University Graduate School of Journalism. Cannabis Wire is a news organization that covers cannabis in America. Hey, Alyson, welcome back to WNYC.

Alyson Martin: Thank you so much for having me again. I always love being here and I really like how you framed it as a wrinkle. A policy wrinkle. I think that's accurate.

Brian: Meaning it's not that big a thing. It's just a little wrinkle, or what do you mean?

Alyson: Oh, man, no, no, no. It's a huge wrinkle, actually. I think it's such an interesting policy area because there are a couple of things that play with cannabis. There's impairment and then there are positive tests for THC, which don't necessarily correlate. That's the beginning of this giant ball of yarn, I think.

Brian: Yes, so let's talk about the idea of impairment, even sort of conceptually and metrically, and why even though employers are allowed to prohibit working while under the influence, that seems like common sense, that's tricky for legal weed in a way that it's not for alcohol, right?

Alyson: Yes, exactly. There are a few things here. A positive THC urine test can occur for weeks after somebody consumes cannabis, especially if someone's a heavy consumer. That's one thing. Even with blood tests and other type of tests, the presence of that THC doesn't necessarily equal impairment.

Then there's a third layer, which I think is interesting, and what further separates cannabis from alcohol, which is impairment affects people differently based on the type of cannabis they're consuming, and also just who somebody is and whether they've eaten and how tall they are or how much they weigh. For example, if you and I had the same edible or use the same vape pen, we might experience different levels of impairment or intoxication. All of these factors and variables are at play when you're sort of deciding what impairment actually is versus what a positive THC test is.

Brian: When there's a safety-sensitive job to use that category like a police officer, who might need to make a split-second decision that has life and death implications, or maybe a train operator or whatever, is there good science already on how long ago they could have used cannabis and still have their full wits about them on the job the next day, two days later, four hours later, whatever?

Alyson: As far as "good science," I think that's so tricky. Where things are falling now is that safety-sensitive employees, train conductors, EMTs, firefighters, bus drivers, people for whom their own safety or others' safety is part of the job. Generally, policies are falling on the side of not allowing those types of people to consume cannabis off-hours in part because that science is so tricky. Detecting impairment is actually coming down on the side of subjectivity, which is what's making this wrinkle. As I was alluding in the beginning, such a big wrinkle. Subjectivity when it comes to this stuff is pretty tricky.

Brian: Listeners, we can take some phone calls on this. If you live in an already legal state, has this impacted your job or your job hunt? We'll get to job applicant testing in a minute. 212-433-WNYC. If you're in New Jersey on this day one of legal cannabis dispensary sales for not just medical marijuana users, has your employer spelled out new policies for you now that recreational sales of pot are beginning?

Employers, are you keeping up with laws on off-duty and on-the-job cannabis use? 212-433-WNYC. For anybody in any of those categories or anyone else with a question for Alyson Martin from Cannabis Wire, 212-433-WNYC, 433-9692, or tweet @BrianLehrer. Alyson, let's move on to non-safety-sensitive jobs.

In New York, where they're in the process of starting legal weed sales, laws were put into place, I see, to prohibit employers from testing for cannabis, unless it's required by federal law for that particular job or contract or unless the employee "manifests articulable symptoms of cannabis impairment" that interfere with their work or workplace safety. Bottom line, what does that mean in terms of people who apply for a job in New York State? Can they be given a drug test like I think happens in many industries routinely before this law?

Alyson: Yes, so New York and New Jersey are both falling on the side of more worker protections as far as cannabis use is concerned. You're brave for articulable symptoms of impairment. That's a tongue twister, but there's actually no complete list of symptoms of impairment. It's "objectively observable indications" that the employees' performance of duties, of their position, are somehow decreased or lessened. Again, this is pretty subjective and open to interpretation.

Brian: Right, in terms of articulable symptoms?

Alyson: Yes, it's basically whether somebody thinks somebody seems impaired.

Brian: Well, what about if you're just applying for a job and you're an applicant and they're going to hire you? Can they screen you with a cannabis test? I believe that in some legal states, they can.

Alyson: Yes, with so many areas of cannabis policies, there's a patchwork, right? It's basically what the state decides. I think, broadly speaking, to account for the most number of employers in New York and New Jersey, really what it comes down to is that employers are going to have to clearly articulate in their employee handbook, specifically what's allowed and what's not allowed. Employees with questions are going to have to ask those questions. It's going to have to be an area, I think, of employer policy and employment policy going forward, where what I'm seeing is the advice is, "Just be as clear as you possibly can in your employee handbook during that hiring process."

Brian: Adam in Hillsdale, you're on WNYC. We have a few New Jersey calls coming in here on day one. Adam, hi there. You're on with Alyson Martin.

Adam: Hey, Brian, first-time caller, longtime listener. I applied for a handgun in New Jersey and one of the questions on the questionnaire is, "Do you smoke marijuana or have you?" I think you can be banned from using a handgun in New Jersey or owning one and I don't know how the police get a pass on that. I'll take my call off the air or answer off the air.

Brian: Thank you very much. Interesting area. Are you familiar with it, Alyson?

Alyson: Yes, very familiar. That's a super interesting question. Actually, there was some news out of Florida yesterday. This is not just a New Jersey thing. This is across the country. I think that this is an area of policy that push is going to come to shove sometime soon and there's going to have to be clarification. Basically, medical cannabis patients or adult-use cannabis consumers technically either have to lie to the Feds or they cannot purchase firearms and ammunition.

Actually, yesterday, I talked to Florida Ag Commissioner Nikki Fried about a lawsuit that she's spearheading, seeking clarity on this very issue. She told me yesterday that she was in contact with the White House on Monday about it also. Basically, there are a lot of cannabis consumers and medical cannabis patients across the country who are caught in this crosshair. Do they forfeit their Second Amendment rights or do they lie on that form? It's a big issue. It's come across my metaphorical desk quite a few times, especially recently.

Brian: Does it suggest a larger category of thing here, which is in legal states even if you use cannabis legally and safely under the law, presumably safely, that there are things that you can be barred from even though you live in a legal state and are using it responsibly as far as you could tell?

Alyson: Yes, for sure. There are a number of areas, at least a dozen I can think of off the top of my head, where state and federal law collide actually in a pretty major way. Guns, that's one area. Another area is around with certain charges, cannabis charges. People can face huge barriers and hurdles to accessing things like federal student loans, federal housing if somebody receives federal subsidies for housing. There are many, many, many, many areas.

Brian: Wait, federal housing subsidies and student loans could be-

Alyson: -in question for cannabis consumers.

Brian: -in question? Does it actually happen for legal cannabis consumers in legal states?

Alyson: No, it does happen and it's not infrequent, right? These are issues that come up time and time and time again. I've been on this beat since 2009 before it was coming up as often as it is now, but federal law is unequivocal, right? Cannabis is a Schedule 1 substance and federally illegal. Just because dozens of states have decided to change their laws, New York, New Jersey today, obviously, being included in that, that doesn't change the fact that federal law is pretty black and white on this. When federal law becomes an area of intersection, it becomes, at the very least, complicated.

Brian: Right, and that's why, for example, when you bring up housing, Mayor Adams' idea in New York that he brought up just the other day that pot could be grown atop NYCHA buildings is likely a no-go for now because they're financed, NYCHA buildings are, with federal rent subsidies. There's another area of that conflict. Here is Bobby, who is a truck driver. Bobby, you're on WNYC. Thank you for calling in. Hi. Do we have Bobby? Do I have the right line? Is it Bobby, a passenger right now heading into Manhattan in a vehicle?

Bobby: Hello?

Brian: Hi there.

Bobby: Yes, I am. I'm sorry.

Brian: That's all right.

Bobby: I'm going over a bridge. I drive a truck and I have a CDL, which is an interstate license. Believe me, I don't think anybody driving a truck or any of these other jobs that have other people's lives in their hands should be smoking weed at any time. It's a little ridiculous.

Brian: Even off the job, the night before?

Bobby: Yes, but you don't know. You want to take that chance? I'm driving a truck with 180,000 pounds on it. You wanted to take your chance that I'm [inaudible 00:14:01]. I don't think so.

Brian: Bobby, thank you very much. Are there specific rules for truck drivers or taxi drivers? Anything like that, Alyson?

Alyson: Well, it's really interesting. I think that when it comes to folks who are driving across America's roads, I personally-- what I've seen and based on my reporting, I think some folks are split, right? Some folks believe who are truck drivers like Bobby-- and thanks for calling in with this. This is an interesting area of the policy here. Some folks would like to-- like they crack open a Budweiser or an IPA or whatever. At the end of the night, they should be able to also smoke from a vape pen or inhale from a vape pen or have an edible.

When it comes to DOT, the short answer is it's the same as federal law. It's pretty unequivocal. No use as far as these safety-sensitive employees are considered. One thing I do want to add though is that with the big infrastructure bill that Congress passed in late '21, they actually called for a report on research barriers to understanding cannabis impairment, impaired driving. It was with the aim of creating a national standard for cannabis impairment.

Also, that call for research isn't new. In 2017, the DOT itself called for better research on cannabis impairment. It really still comes down to that issue of what actually is impairment. It comes down to Bobby's question around, we don't know, right? We don't know if that impairment trickles into the next morning and this person's driving X thousands of pounds of cargo. What is that impairment?

Brian: Catherine in Chelsea, you're on WNYC. Hi, Catherine.

Catherine: Hi, I'm calling because I wanted to share a story about my childhood friend with whom we've been friends for decades, who is a lung cancer survivor, can't smoke anything, and also has rheumatoid arthritis. She lives in Florida. She has a medical card and her physician prescribes a cream, a combination of THC and CBD. She had an accident in the workplace, fell, tripped over a wire, hit her head, got a concussion. She saw her doctor and he said, "You need to go to the workers' comp doctor."

She went and saw the workers' comp doctor and had no idea, but they tested her urine. Of course, the THC showed up. She then said, "Well, I have a medical card. My doctor prescribes it." When she went into work, she had been there for two decades, her employers called her into a room. One of them, a middle-aged man, was crying and said, "We have no choice but to fire you because this is a federally-regulated substance."

She lost her pension. She can't even get a job. She was fabulous and had been there for two decades. I also have a son, who happens to grow medical cannabis in Oregon, where the medical cannabis industry has been decimated since it's gone recreational. I just feel like it's the Wild, Wild West. Big corporations are coming in and everything's moving so quickly. Regular people are getting caught in a snare.

Brian: Even the fact that the person whose story you were telling had a prescription from a doctor for marijuana as a medicine did not shield her from losing her job and her pension. Alyson, you've heard this before, I have a feeling.

Alyson: Yes, I have. It's actually not technically a prescription unless it's the FDA-approved Epidiolex, the CBD formulation that's been approved for very narrow conditions usually related to seizures. It's a recommendation. It's a recommendation from the doctor.

Brian: I see.

Alyson: Federal law is the beginning, middle, and end on a lot of this. My guess is that when that really unfortunate termination came down when the employer's hands were tied, it probably just came down to that very simple federal law that says it's illegal and that's just what it is. Now, when federal law changes on cannabis, which if I were a betting woman, I would 100% bet that federal law is going to change on this, it's a matter of when, these are going to be some of the many, many wrinkles that are going to need to be ironed out because you mentioned workers' compensation. It is starting to come up in some legal disputes in various states, but it's another area of patchwork that comes down to interpretation of state law versus federal.

Brian: Catherine, what a horrible story about your friend.

Catherine: It is so sad, but thank you. Thanks for letting me tell it.

Brian: Thank you. Thank you for sharing it.

Catherine: Bye-bye.

Brian: Yes, thank you for sharing it. It's a cautionary tale. I guess in our last 30 seconds, Alyson, I guess this whole conversation about this wrinkle, even as legal adult recreational sales go online in New Jersey today, there's this whole workplace-related area that people still have to be aware of.

Alyson: For sure. Depending on where people-- especially in an area like the New York City metro, folks are traveling, New York, Connecticut, Pennsylvania, New Jersey. Those laws are all different. It's the northeast and you can drive into a different state in 15 minutes. It's just going to come down to really knowing what the state's policies are, and really knowing how specific employers act on those policies very specifically in those employer handbooks and employee handbooks.

Brian: Right, until and unless this gets smoothed out at the federal level and they do talk about that in Congress right now, but nothing's about to pass. Alyson Martin, co-founder of Cannabis Wire and adjunct professor at the Columbia University Graduate School of Journalism. Thank you so much.

Alyson: Thank you. I appreciate it.

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