Recreational Marijuana Bill Stalls, But Employers Should Nevertheless Brace For Its Passage

On November 26, 2018 a Joint Committee of New Jersey lawmakers advanced a bill that would legalize recreational marijuana use in the state. Although the bill had widespread support, including from Gov. Murphy, disagreements among Senate Democrats over the percentage of state taxes on marijuana stymied the vote on the bill that was expected in mid-December. Predictions that the bill will be re-introduced and voted upon early this year may be overly optimistic given other pressing issues pending in Trenton. If the bill is ultimately passed, New Jersey will join 10 other states that have legalized recreational marijuana.

When reintroduced, it is not expected that there will be any changes to the bill’s provisions addressing marijuana in the workplace. A single paragraph of the prior version of the sweeping legislation specifically addresses recreational use and the workplace, and simply provides that nothing in the bill requires an employer

to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana items in the workplace or to affect the ability of employers to have policies prohibiting marijuana use or intoxication by employees during work hours. No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke or use marijuana items, unless 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.

Unfortunately, this provision has several ambiguities that cloud the issue of whether employers who administer drug tests can discipline employees who test positive for marijuana. First, while it is clear that employers can maintain policies prohibiting marijuana use or intoxication, the bill does not address the situation where an employee has used marijuana off duty, e.g., over the weekend, and tests positive on Monday. Although the employee may no longer be under the effects of marijuana, a positive test result will occur up to 30 days after use (90 days in the event of hair testing). To further complicate the issue, unlike alcohol there are no established legal standards for marijuana “intoxication,” nor are there tests currently on the market that can accurately measure the levels of marijuana in the system. As a result, the legislation suggests that employers may not rely upon positive testing alone to terminate or discipline employees, but must rely on other observed indicia of intoxication, such as bloodshot eyes, marijuana odor and behavioral changes, similar to the factors typically used by employers to detect alcohol use. Even if these observations are coupled with a positive test for marijuana, it nevertheless is unclear whether the employer can take action absent proof that the employee is in fact “intoxicated,” a term that is not defined in the legislation and thus will ultimately be defined by Courts interpreting the new law or by subsequent amendments to the new law.

A second ambiguity arises from the language prohibiting an employer from discharging employees who use marijuana unless it has “a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee.” Although this might give employers leeway to exclude marijuana users from safety-sensitive positions, in the absence of further clarification in the final bill or subsequent regulations, employers invoking this clause can expect legal challenges until the courts give further guidance on when a “rational basis” has been met.

If the recreational marijuana bill is ultimately passed, it is strongly recommended that employers should seek further guidance from employment counsel before taking any adverse actions against employees who test positive for marijuana use.