On February 22, 2021, Governor Murphy finally signed three bills into law that effectively lay the ground work for legalized use of recreational marijuana in New Jersey. While it could be some time before widespread legalized marijuana is available for purchase as the state establishes the needed infrastructure for the sale of the drug through state licensed dispensaries, I have fielded a number of questions already from employers regarding how far they must accommodate employee use of recreational marijuana. The reality is that employees will have wider protections under the new use law, and though those protections are not absolute, most employers now will have to come to grips with the new reality that marijuana use after work hours will no longer be grounds to automatically discipline an employee.
The new law expressly bars an employer from firing or refusing to hire a person who uses marijuana in their free time. Nonetheless, employers who have “reasonable suspicion” that a worker is “high” during work hours may still drug test such an employee and ultimately fire or discipline them if the test result is positive. Moreover, if you happen to be a Federal contractor who is subject to drug free workplace requirements, you will have more latitude even under this new legal scheme in imposing restrictions for recreational marijuana use since failing to prevent drug use in your workforce could place in jeopardy your continuing contractor status.
The law further specifically allows an employer to do random, regular or pre-employment screening, but in doing so, it must include a “scientifically reliable” test of blood, urine or saliva, paired with a physical evaluation to determine if the employee is currently impaired, as well as a physical examination by an employee who undergoes training to spot marijuana impairment. What that training will require for such employer observers will likely be crafted as part of the expected regulatory framework to be implemented by the state. So stay tuned for additional developments on this topic.
Finally, a frustrating reality with which employers will now need to grasp even more is that, when it comes to marijuana, there is no widely-used and accepted physical drug tests for marijuana that can detect real time intoxication absent proof of immediate drug use and impairment. Instead, the current test merely reveals the presence of marijuana in the body, which can linger sometimes days or weeks after a person last consumed the drug. This could further limit the circumstances where corrective actions can be taken against an employee for recreational marijuana use.
Accordingly, in light of the passage of this statutory framework that paves the way for legal marijuana use, employers need to start reviewing their drug testing policies and bring them into compliance with the new standards for testing for marijuana use. Furthermore, once training standards are established, employers will need to designate corporate observers and ensure that they receive the requisite training to detect marijuana impairment. The sooner employers start to address such issues, the better it will be in dealing with this changed legal landscape involving recreational marijuana use.
Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.