COVID-19, Cannabis & Culture: The Rapid Evolution of Employment Law

The COVID-19 pandemic also caused every human being to reassess their work-life balance.

“People are no longer living to work; they’re working to live, and their job is not their life,” Weiner says. “Although the law does not necessarily require employers to provide employees with all they might reasonably expect (i.e. benefits, paid leave, flexible hours, hybrid/remote work environments, etc.), employers may need to in order to ensure they’re able to retain the best and brightest – even after the pandemic subsides.

“With employees bringing these issues to the forefront, it’s the marketplace dictating changes to employer behavior. It’s usually legislation that does that, but here, it’s grassroots,” Weiner says.

“That’s why we’re seeing labor shortages – people want to work for a company they feel good about,” Mastroianni adds. “Companies need to come to terms with how to not only get people in the door, but also be excited to come to work everyday.”

That can present real challenges, Wells says.

“If an employer wants to return to work in a hybrid fashion, and an employee has relocated without notice, can they continue to accommodate them with remote work, and as a business, do they want to?” she says.

“Additionally, for employees who are eligible for overtime, are employers making sure they are properly recording their time when working from home? Employers who allow hourly workers to work remotely must put in place policies, procedures and appropriate technologies to record hours worked so that they don’t run afoul of wage and hour law,” Wells says.

Despite the continued prevalence and repercussions of COVID-19, it’s not the only thing that has drastically changed employment law over the last two years.

“Employers need to be aware of the new employment protections for cannabis users within the state,” Mastroianni says. “An employer can no longer take any adverse employment action, such as termination, against an employee solely due to a positive drug test for THC.

“If an employee is obviously under the influence of cannabis at work, that would be a perfectly legitimate reason for termination. However, the law also changed regulations surrounding drug testing for cannabis use – there must be a physical examination as well,” she says. “That requirement is currently suspended by the state, but will likely go into effect next year – and those in charge of detecting whether someone may be under the influence really need to understand what that looks like in real-time.”

Mastroianni adds that she expects to see more enforcement actions against companies misclassifying employees as independent contractors in 2022.

“When New Jersey released all these new laws, they conducted an audit of 1% of the companies across the state and found almost 13,000 cases of employee misclassification,” she says.

“If an employer classifies employees as independent contractors, they must be free from the control of the employer and may conduct business how and when they want; if not, employers must pay them as employees with minimum wages, overtime, and from a tax perspective, take out the proper deductions and withholdings, including payments into temporary disability funds and unemployment,” Weiner adds. “New Jersey’s Department of Labor now has numerous penalties and auditing powers to ensure employers are properly classifying their employees.”

In the end, it’s more cost effective to have a full-time human resources executive or an employment attorney on retainer or available on at least a biannual basis to review updates than to be deemed noncompliant because you had no other way of knowing the law.

“You may go 20 years without an issue, but when an employee raises one, they usually come in groups, leading to a slippery slope,” Weiner says. “While it may seem like an unnecessary expense when everything is fine, if you’re not compliant with the law, you can get hit with backpay awards, compensatory and/or liquidated damages, attorney fees, and then you’re under the radar of the Department of Labor.

“I liken it to buying an insurance policy – you pay the monthly premium, and while you may never need to file a claim, if and when the storm hits, you’ll be really glad to have it.”

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COVID-19, Cannabis & Culture: The Rapid Evolution of Employment Law