By Bill Current and Katherine Miller
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No two legal marijuana state laws are alike. Some may reflect components of others, but each typically includes some provisions that are unique to that state. Nowhere is this truer than in New Jersey.
The Garden State legalized medical marijuana in 2010. Then, in November 2020, voters overwhelmingly approved Public Question 1, a measure to legalize the so-called “recreational” or adult use of marijuana. However, unlike the state’s medical marijuana law, Public Question 1 did not contain any workplace-related language. In early 2021, New Jersey lawmakers took it upon themselves to fill in all the missing pieces of the recreational marijuana law, including placing restrictions on employers trying to deal with the problems of applicants and employees using pot.
The employment sections of New Jersey’s adult-use law went into effect on August 21, 2021. Under the law, legal cannabis use should be treated similarly to alcohol use. Employers are not required to permit or accommodate the use, consumption, possession, etc., of cannabis or intoxication of employees during work hours.
Further, employers should/can:
- Not refuse to hire, refuse to employ, discharge an individual, or take adverse employment action against an individual who does or does not use cannabis.
- Require an employee to undergo a drug test if there is a reasonable suspicion of cannabis use while engaged in work responsibilities, if there are observable signs of intoxication that are related to cannabis use, or if there is a work-related accident subject to investigation.
- Use the results of an aforementioned drug test when determining appropriate employment action, which may include, but is not limited to, dismissal, suspension, or demotion.
- Maintain a drug- and alcohol-free workplace.
Workplace Impairment Recognition Expert
Uniquely, the New Jersey law requires the use of a “Workplace Impairment Recognition Expert” (WIRE) to make the determination regarding whether an employee is impaired on the job. No other state has this requirement. Prior to this provision being passed by the New Jersey legislature, such a position did not exist for workplace purposes. As of yet, the New Jersey Cannabis Regulatory Commission and the Police Training Commission have not provided standards for Workplace Impairment Recognition Expert certification.
On August 19, 2021, New Jersey posted special rules to their website, a part of which pertained to the Workplace Impairment Recognition Expert requirement. They state:
“Notwithstanding the provisions of N.J.S.A. 24:6I-52, until such time that the Commission, in consultation with the Police Training Commission established pursuant to N.J.S.A. 52:17B-70, develops standards for a Workplace Impairment Recognition Expert certification, no physical evaluation of an employee being drug tested in accordance with N.J.S.A. 24:6I-52 shall be required.”
The special rules expire on August 19, 2022. Until that point in time, New Jersey employers can currently disregard the WIRE requirements when drug testing employees.
Answers to the Key Questions
So, to summarize the answers to the key questions New Jersey employers are undoubtedly asking:
- What’s the situation in New Jersey? – Adult-use cannabis is legal. Employers can only take action under very specific circumstances. The requirement to use a Workplace Drug Recognition Expert is on hold for the time being.
- Is New Jersey basically the same as other states when it comes to recreational marijuana? – Close but not exactly the same. Unlike many other states, New Jersey doesn’t include a safety-sensitive carve-out, meaning restrictions in the state apply to employees across the board, including safety-sensitive workers. Conversely, in other states and/or cities, such as New York City, some marijuana workplace-related restrictions do not apply to applicants for safety-sensitive positions, for example.
- Can a company take negative action against someone who has a positive marijuana test? – Eventually, employers should use a WIRE and test for intoxication at the workplace, meaning that a positive test result should likely be combined with signs and symptoms of impairment/a physical examination to justify adverse employment action.
- Is it official? – Yes. The WIRE guidelines have yet to be released, so those aren’t official, but the rest of the law is official, and employers should comply.
Certainly, by comparison to many other states, New Jersey cannot be considered an employer-friendly state when it comes to workplace drug testing. Generally, restrictions apply to random testing and the licensing of laboratories for drug testing purposes. And now, the state’s new adult-use marijuana law places restrictions on what employers can do with a positive drug test result and fails to exclude applicants for safety-sensitive jobs from those restrictions as do other states/cities.
There are still some things to iron out in New Jersey’s marijuana law, but right now the best advice for employers is to review the law carefully, consult with your legal counsel, and revise your drug testing policy to ensure complete compliance.
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