After some delay, Governor Murphy finally signed legislation to legalize recreational marijuana in New Jersey. While this is a historic moment and something of an end to what has been a lengthy legislative saga, questions still remain about the impact this legislation will have on employers and employees, including the most important question: can someone be fired for cannabis use? Unfortunately, this is still something of an open question, and therefore a question both employers and employees should approach with great caution.
Why is this uncertain?
The cannabis legalization legislation makes clear that employees cannot be fired for exercising what is now a right under the New Jersey constitution. But they can be fired if it is proven that the employee was under the influence at work, proof which must be provided in the form of both an actual test for THC and expert examination and testimony regarding signs that the employee was working under the influence.
However, legislation is just the first step and there are still a host of rules and regulations for the New Jersey Cannabis Regulatory Commission to work out on how such a testing regime would work. Given the length of time it took just to put together the basic legislation, those rules and regulations are unlikely to be finalized any time soon. Another area where regulations need to be clarified is how expert witnesses will be licensed and trained.
What do employers need to know?
Employers need to keep in mind that the enacting legislation signed this week contains employee protections that should not be taken lightly. While the legislation states the regulatory framework needs to be in place for employment protections to be “operational,” the employment protections are “effective” immediately. As to what the difference is between “operational” and “effective” protections are, one can only guess at what the legislature was thinking. But as an employer, I would be hesitant to ignore employment protections that have been declared “effective.” Employers should be treating off-hours use of cannabis as a private right that employees can enjoy. That is, unless the employer in question is the federal government, in which case private, off-hours cannabis use is still grounds for dismissal.
What do employees need to know?
You have a right not to face adverse employment consequence for private, off-hours marijuana use. But don’t show up to work high. Your employer needs only to have reasonable suspicion that you are under the influence of marijuana to require a physical drug test and evaluation by an “expert” on whether you are exhibiting signs of intoxication. Given how long THC stays present in the bloodstream, and the lack of any guidelines on “expert” training, there is still plenty of leeway for employers to find that an employee was high on the job. Also, employers are still permitted to require drug tests as part of pre-employment screening and as part of a regular drug screening program. In short, if your employer really wants to know about your marijuana use, they will. Given that most employment is “at-will” anyway, the employment protections signed into law this week may amount to small comfort.
The attorneys at Dressel/Malikschmitt LLP are monitoring the progress of legalization legislation and stand prepared to advise our clients on legalized cannabis in New Jersey. If you are interested in starting a business in the New Jersey cannabis industry please reach out to our attorneys by either calling at 848.202.9323 or contacting us through email at firstname.lastname@example.org. We look forward to helping you with whatever inquiries you may have.