On the heels of the victory of the recreational marijuana referendum at the polls, the New Jersey Senate and Assembly moved swiftly to introduce proposed legislation regulating the use, licensing and taxation of marijuana. As of this writing the Legislature was close to sealing a deal and a vote could come as early as December 18, 2020. Despite the fact that marijuana use in the workplace has significant consequences for employers, especially those with high populations of safety sensitive workers, the most recent version of the bill is long on employee protections and short on protections for employers.
Preserved Employer Rights. Similar to the earlier Jake Honig Compassionate Use Medical Cannabis Act affording workplace protections to medical marijuana users, the proposed legislation provides that nothing in the Act shall be deemed to:
- Restrict or preempt an employer’s right or obligation (as required for federal contractors) to maintain a drug- and alcohol-free workplace;
- Require an employer to accommodate the use, being under the influence or possession of cannabis in the workplace; or
- Require an employer to commit any act that would cause the employer to be in violation of federal law, that would result in the loss of a licensing-related benefit under federal law, or that would result in the loss of a federal contract or federal funding.
Thus, government contractors and employers of CDL drivers subject to DOT random testing mandates remain free to exclude those workers who test positive for marijuana use from the workplace in accordance with federal requirements.
No adverse employment actions against users: the Bill states that “[n]o employer shall refuse to hire or employ any person or shall take any adverse action against any employee . . . because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.” Gutted from this provision is prior language that permitted an employer to refuse to employ or continue to employ a cannabis user if the employer “has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employment.”
The omitted language would arguably have given employers the green light to test and exclude marijuana users from working as schoolteachers, daycare workers, substance abuse counsellors or religious leaders (who may serve as role models), or individuals working in safety-sensitive positions, as the unique duties of these positions are a “rational basis reasonably related to the employment” warranting exclusion. As discussed further below, while the ability to randomly test individuals in safety-sensitive positions has been preserved, it is unclear whether a positive test of individuals in these positions, standing alone, could be a basis for discipline or discharge outside the federal contractor arena.
Permissible drug testing. The proposed bill preserves the right of an employer to compel an employee to undergo a drug test in the following circumstances:
- suspicion of an employee’s usage of a cannabis item while engaged in the performance of job duties;
- upon finding any “observable signs of intoxication related to usage of cannabis;”
- following a work-related accident subject to investigation by the employer; or
- random testing.
Although the bill does not specify that random testing is strictly limited to those in “safety-sensitive” positions, the New Jersey Supreme Court restricted random testing to individuals working in these positions in its opinion in Hennessey v. Coastal Oil.
Unfortunately, the bill is silent with respect to pre-employment testing, and it is unclear whether this common practice is still permissible. However, a carve-out provision of the bill suggests that such testing is still permitted. That provision states that the bill shall not be construed “to amend or affect in any way any state or federal law pertaining to employment matters.” Whereas pre-employment testing was deemed permissible by the Supreme Court in the Hennessey case, it presumably will survive the bill’s passage unless additional amendments address this issue.
Discipline for a positive test. The bill expressly reserves the right of the employer to use the results of a drug test when imposing discipline, including but not limited to dismissal, suspension, demotion or other disciplinary action. However, employers will be limited to drug testing of current employees to the four situations identified above.
The “Workplace Impairment Recognition Expert” requirement? Unlike alcohol testing, currently there is no reliable testing to determine whether an employee is under the influence of cannabis on the job or may have used it during off hours and is not suffering from any ongoing effects. To balance the competing interests of marijuana users to be free from discharge or discipline for marijuana use, while simultaneously supporting the right of employers to maintain drug-free workplaces and require drug testing, the bill mandates the creation of standards for a “Workplace Impairment Recognition Expert” certification developed by the Cannabis Regulatory Commission in conjunction with the New Jersey Police Training Commission. The bill further requires that any testing administered under the act shall be “scientifically reliable or by a Workplace Impairment Expert certified pursuant to the act.”
While this language of the bill is unclear and raises many questions about employer testing, it strongly suggests that discipline in the case of “reasonable suspicion” testing must be predicated upon an assessment by a Workplace Impairment Recognition Expert. Whether such an assessment would be required in random and post-accident testing is a little less clear, but to be sure employee rights advocates will argue that this assessment is a necessary predicate to discipline for any positive testing to distinguish between permissible off-duty use and on-duty impairment, at least until reliable tests for current impairment are developed. As previously stated, federal contractors subject to federal drug-free workplace rules would be exempted from this requirement.
What’s next. The new bill leaves many unanswered questions about an employer’s rights and obligations with respect to workplace cannabis testing. Hopefully, some of these questions will be addressed by the Legislature before the bill comes up for a final vote. If the bill is adopted without clarification, employers will face many unanswered questions about how to deal with employees who use recreational marijuana and can expect legal challenges if a drug test or signs of impairment are a basis for any adverse employment actions by the employer.