Last week New Jersey voters overwhelmingly voted to amend the State’s Constitution to legalize recreational marijuana for adults 21 and older. This amendment was years in the making. Governor Phil Murphy ran on the platform to legalize marijuana but failed to get enough votes to pass a law last year. As a result, the Legislature decided to put the initiative on the ballot and ask voters. They answered with a resounding “yes” and the initiative received 67% of the vote.
Now it is up to the New Jersey Legislature to pass a bill to hammer out all of the details. McOmber McOmber & Luber, P.C. is monitoring these developments and is focused on making sure you know your rights at home and in the workplace when it comes to marijuana use and testing. The following are some common questions.
Can I legally purchase recreational marijuana?
No, not yet. The New Jersey Legislature must first pass enabling legislation to create a legal framework for the law to go into effect. There is no start date but some experts believe that the program could be up and running as early as the end of 2021/early 2022. This is expected to move fast because the new legalization bill will largely resemble the last bill that failed to pass in 2019. Lead sponsor State Senator Nicholas Scutari stated that he expects hearings to begin as early as this week.
Who will be allowed to sell recreational marijuana in New Jersey?
The proposed legislation from 2019 gives licensed medical marijuana dispensaries the first crack at selling recreational marijuana. Currently there are 12 licensed dispensaries throughout the state but only 9 are up and running. With so few dispensaries, people with medical marijuana cards (there are approximately 70,000 of them) have complained about delays in getting the product. This problem will likely be compounded once recreational marijuana is made available to the public. www.nj.gov/health.
Can I be arrested for using or carrying marijuana for recreational purposes?
Maybe. Although voters approved legalizing marijuana, the Legislature has not passed a law yet to decriminalize marijuana. New Jersey Attorney General Gurbir S. Grewal issued a statement last week reminding people that criminal laws relating to recreational use of marijuana “continue to apply.” Grewal stated that he will soon issue a directive providing additional guidance to police officers and prosecutors and reminded them they have “broad discretion” in handling low-level marijuana offenses. www.nj.gov/oag
How will law enforcement determine if someone is under the influence of marijuana?
Law enforcement is very concerned about the legalization of marijuana because it is hard to determine when someone is legally impaired. Unlike alcohol where a police officer can use a breathalyzer to measure impairment, there is no similar test for marijuana. In addition, it takes weeks for the body to metabolize THC found in marijuana, so it is difficult to determine whether that affected someone’s behavior.
To prepare for marijuana legalization, police departments are hiring drug recognition experts (DRE) who are police officers trained to conduct in-the-field DUI observation tests. Police departments are also increasing drug recognition training for police officers in general. www.whyy.org/articles
Can my employer institute a zero-tolerance policy against drugs now that recreational marijuana is legal in New Jersey?
Yes. The proposed legislation from 2019 states that the legislation does not “require an employer to permit or accommodate the use” of marijuana “in the workplace” or “to effect the ability of employers to have policies prohibiting marijuana use or intoxication by employees during work hours.” www.njleg.state.nj.us. Therefore, an employer can institute a zero-tolerance policy against drug use that includes marijuana. The more difficult question is enforcement since the proposed legislation only deals with using marijuana “in the workplace” or “during work hours.” Unlike alcohol, marijuana is often difficult to detect and can stay in the body for weeks after using.
Can my employer terminate me for using recreational marijuana not during work hours?
No. The proposed legislation from 2019 states that an employer cannot refuse to hire or employ any person or take an adverse action against any employee “because that person does or does not smoke or use marijuana items.” The one exception is if the “employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.”
For example, it is likely that an employer can refuse to hire or employ someone in a safety-sensitive job if they use marijuana. This is the same reasoning set forth in the Compassionate Use Medical Marijuana Act (CUMMA) relating to medical marijuana. The CUMMA states that employers are not required to permit employees to “operate, navigate or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of cannabis.” N.J.S.A. 24:6I-8.
Can my employer terminate me for using medical marijuana not during work hours?
No. The CUMMA states it is unlawful to take any adverse employment action against an employee “solely on the employee’s status as a registrant” for medical marijuana. N.J.S.A. 24:6I-6.1. Again, that does not mean an employer must allow an employee to use marijuana in the workplace or if the employee has a position that is safety sensitive. Wild v. Carriage Funeral Home, 241 N.J. 285 (2020).
Will I be eligible for workers compensation if I use recreational marijuana?
Maybe. New Jersey’s Workers Compensation Act covers personal injuries and death coming out of and in the course of employment. However, the Act contains specific exceptions including for when intoxication and or the unlawful use of controlled dangerous substances are the cause of the injury or death. If your workplace injury was caused by your intoxication, you may be denied workers compensation. www.nj.gov/labor/wc. To make this determination, employers will normally require a drug test following an accident. There are no state laws governing drug testing, but the New Jersey Supreme Court has set forth some guidance.
In Tlumac v. High Bridge Stone, 187 N.J. 567 (2006), the New Jersey Supreme Court held that an employer can withhold compensation for workers compensation if it can prove by a preponderance of the evidence that the employee’s work-related injuries were caused solely by the employee’s intoxication. The burden is on the employer to find that the intoxication is the natural and proximate cause of death or injury. N.J.S.A. 34:15-7.
Can my employer drug test me?
Maybe. In Hennesey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992) the New Jersey Supreme Court concluded that random drug testing does not violate public policy or an employee’s right to privacy when there is a concern over safety. In Hennesey, the Court stated that safety outweighs an employee’s right to privacy in off-duty activities. The Court recommended that employers consider the following guidelines when drug testing employees:
- Implement a procedure that allows as much privacy and dignity as possible.
- Provide notice that gives adequate advance warning to the employee.
- Provide information on the lingering effects of certain drugs in the system.
- Explain how the sample will be analyzed.
- Detail the method for selecting employees to be tested.
- Notify employees of the consequences of testing positive or refusing to take the test.
- Conduct only those tests that are necessary to determine the presence of drugs in the urine
- Refrain from publicizing the results of the testing
If an employer has a drug testing policy that follows these guidelines, it is likely that it will be upheld in court.