NJ Legalization of Marijuana Creates Questions for Employers

In response to the recent amendment of New Jersey’s constitution to allow for recreational marijuana use, Gov. Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, which removes cannabis as a Schedule I drug and legalizes its use for adults 21 and older.

While this new law will have broad implications for emerging businesses, as discussed in our prior alert, there are particular concerns for employers, some of which are left unresolved.

Employee Protections

The Act provides protections for both prospective and current employees that limit what an employer can do in response to marijuana use outside the workplace, even for a safety-sensitive position. Significantly, under the Act, employers cannot refuse to hire a person or take any adverse employment action against an existing employee for using marijuana outside the workplace. Likewise, the employer cannot take adverse employment action against an employee for testing positive for cannabinoid metabolites or admitting to having used marijuana. These new protections are in addition to the existing requirements that employers engage in the interactive process to accommodate off-duty use of medical marijuana.

Employers are, however, allowed to maintain a drug- and alcohol-free workplace by prohibiting the use or possession of marijuana in the workplace and prohibiting employees from being under the influence of marijuana while at work. In order to do this, since a drug test will not tell employers whether an employee is under the influence at that moment, the employee must also be physically evaluated by a person certified as a “Workplace Impairment Recognition Expert” (the Expert). Only if both the drug test and the Expert conclude that the individual is under the influence can an employer then take an adverse employment action against that employee.

The training and certification process for the Expert will be developed by a newly created commission empowered under the Act to promulgate regulations and oversee the development of legalized marijuana in the state. The law states that this commission will develop these procedures in consultation with the Police Training Commission and prescribe a minimum curriculum for the certifications. Any person who has already successfully completed a Drug Recognition Expert program provided by a Police Training Commission approved school would qualify for an Expert certification.

Employers who have safety-sensitive positions, such as employees who operate heavy machinery, are put in even more of a precarious position because there is no exception for those employees in the Act. At this time, those employees are equally permitted to use marijuana outside of the workplace without consequence. The only real exception is for employers who are parties to federal contracts where recreational use of marijuana is still prohibited.

Drug Testing

Drug testing under the Act is still permitted, even if employers are limited in how they can respond to the results of a positive test. Under the Act, drug testing is permitted for any of the following:

• the employer has a reasonable suspicion of an employee’s use of a cannabis item while engaged in the performance of the employee’s work responsibilities
• upon finding any observable signs of intoxication related to the usage of a cannabis item
• following a work-related accident subject to investigation by the employer

A drug test may also be done randomly by the employer or as part of a pre-employment screening or regular screening of current employees to determine use during an employee’s prescribed work hours. However, with respect to pre-employment screening in particular, it is unclear what the purpose of such a test would be under the new law since the employer cannot refuse to hire the employee on that basis and they are not a current employee so cannot be deemed to have used marijuana in the workplace. It is possible that the intention is that an applicant that appears at an interview to be under the influence of marijuana, is evaluated by the Expert and tests positive for marijuana, could be turned away, but this requires further clarification.

Key Takeaways

In light of this new law, employers should review existing drug policies to determine whether they should be modified to comply with the Act and communicate clearly how the company plans to treat marijuana use by employees. Employers should also stay vigilant in following updates and new regulations to the law, especially those employers with safety-sensitive positions because that seems to be the most pressing issue.

The Cannabis Law Practice at Fox Rothschild is closely monitoring legislative and regulatory developments in New Jersey and other states where the laws are changing, and regularly advises employers on tailoring policies to achieve compliance and business goals.