On February 22, 2021, New Jersey Governor Phil Murphy signed three bills that legalize the use of cannabis for those over the age of 21, decriminalize possession of less than six ounces of cannabis and establish civil penalties for use by anyone under age 21. The bills are the enabling legislation following a constitutional amendment approved by voters in November. Notably, because the right to use cannabis is now constitutionally protected in New Jersey, legislators were charged with balancing the constitutional right to use with other conflicting interests, such as those of employers who want to prohibit drug use in an effort to ensure a safe and accident-free workplace.
Effective immediately, it is legal to use and possess cannabis in New Jersey. As a practical matter, however, unless you have a medical marijuana card, you cannot yet purchase cannabis in New Jersey. Before the state’s cannabis marketplace can become operational, Governor Murphy must establish and appoint the members of the Cannabis Regulatory Commission (the “Commission”). Once formed, the Commission has up to six months to set its rules and regulations. Only thereafter, will it begin accepting applications for recreational dispensaries. The Commission is also expected to set rules and regulations that clarify provisions in the law regarding cannabis use and employment.
In 2019, New Jersey passed regulations that provided employment protections for medical marijuana users. We discussed the protections in a July 2019 Blog Post. Now, with the legalization of recreational cannabis, New Jersey employees who choose to use cannabis have even more protection.
Under the new law, employers may not refuse to hire, discharge from employment, or take any other adverse action against an employee because the employee uses cannabis off duty. While employers may continue to test for cannabis metabolites, employees cannot be subject to adverse action based solely on the presence of such metabolites in the testing specimen. Further, the law sets forth the circumstances under which an employer may test for cannabis. Employees can be tested if there is reasonable suspicion that an employee is using cannabis while working, if there are observable signs of intoxication or following a work-related accident subject to investigation by the employer. Tests may also be performed randomly, as part of a pre-employment screening or as part of routine screening of current employees when the purpose is to determine use during an employee’s work hours. However, the law goes onto state that the “test shall include scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva and a physical evaluation in order to determine an employee’s state of impairment.” The required physical evaluation must be conducted by “an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof.” If the test and evaluation demonstrate impairment, the employer may discipline or terminate the employee.
Regarding the physical examination and recognizing impairment in employees, the law contemplates that this will be conducted by a Workplace Impairment Recognition Expert (“WIRE”). The Commission, which as noted above, is not yet formed, is tasked with prescribing the standards and curriculum for WIRE certification. WIRE certification can be issued to full or part-time employees of the employer or to anyone contracted by the employer, who has been trained in detecting and identifying use and impairment from cannabis and other intoxicating substances.
Finally, some good news for employers in New Jersey, employers are not required to permit or accommodate the use, possession, display, sale, or growth of cannabis in the workplace or during working hours. Employers can continue to prohibit employees from being intoxicated by or under the influence of cannabis at work or during work hours. And, if complying with New Jersey law would place the employer in violation of a federal contract, the employer may follow federal law.
The employment provisions in the law govern the conduct of employers and employees in New Jersey. Accordingly, employers with operations in New Jersey must be mindful of the new protections afforded to employees who may choose to use marijuana. Policies should make clear that bringing marijuana onto company property is prohibited, using marijuana on company property and during work hours is prohibited and that employees may not come to work/may not work while intoxicated. Employees subject to federal regulation or drug testing required by federal contract, should be reminded that federal law governs their conduct, and zero tolerance policies will continue to be enforced. Finally, New Jersey employers should begin to identify the employees who will obtain WIRE certification. In the meantime, drug testing for cannabis metabolites should be conducted only when there is reasonable suspicion of impairment or intoxication.
For Pennsylvania employers who employ residents of New Jersey, do not fret. There is nothing in the law to suggest that protections apply to New Jersey residents who work in Pennsylvania. While the employee may have the right to use recreational cannabis east of the Delaware River, recreational cannabis is not legal in Pennsylvania (yet). Accordingly, Pennsylvania and federal law govern their employment in Pennsylvania. Employers in Pennsylvania should continue to be mindful of the rights of medicinal marijuana users, but can continue to enforce zero tolerance and drug free workplace policies for all other employees.
Should you have additional concerns about changes to the law regarding marijuana use, wish to review or discuss training for your managers and Human Resources professionals, your drug testing and drug free workplace policies or have specific questions, please reach out to Denise Elliott, Ursula Siverling or another member of the Labor and Employment Group.