Fired officer reinstated after positive cannabis test
NJ State PBA Legal Corner
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
As we have discussed in previous articles, there is a great deal of uncertainty about how the new recreational cannabis law, the New Jersey Cannabis Regulatory, Enforcement Assistance, Marketplace Modernization Act (CREAMMA), will be applied and enforced. In particular, CREAMMA requires employers to hire and train Workplace Impairment Recognition Experts (WIREs) to make determinations about whether an employee is impaired while on duty.
Despite the uncertainty, there are several points in the new law which are not in dispute. An employer cannot fire or take adverse employment actions against an employee solely because the employee tests positive for cannabis without any proof of impairment on the job. Second, employees cannot use or possess cannabis on the job. Nonetheless, some municipalities are contending that the law does not apply to law enforcement officers.
In a case of first impression decided on Oct. 31, an administrative law judge (ALJ) reversed the firing of a West New York police officer who was fired solely because he tested positive for cannabis on a random test. In Carralero vs. Town of West New York, the town of West New York had no proof that the officer was impaired on the job and fire him soley because of the positive cannabis test. The ALJ ordered that the officer be reinstated with back pay and benefits. The ALJ also awarded counsel fees because the officer was the prevailing party in all respects. The ALJ further ordered that the officer begin receiving his salary immediately. This decision is only a recommended decision and must be approved, modified or reversed by the Civil Service Commission. At this writing, it is too early to know whether the town will appeal the decision.
The essential facts are as follows: The town issued an immediate suspension notice in May 2022 after a single result of a random urine screening earlier that month indicated a positive result for the presence of cannabis. The town did not make any claim that the officer was impaired on the job. The officer was fired solely because of the positive test. After the officer appealed his termination to the Civil Service Commission, the case was transferred to the Office of Administrative Law for a hearing before an ALJ.
The officer filed a motion for summary decision on the basis that his termination was unlawful and violated CREAMMA because the law does not permit an employer to take an adverse employment action against an employee solely due to the presence of cannabis without any proof of impairment. The town responded and filed its own motion, arguing that CREAMMA does not prohibit the officer’s termination because the law depended upon the establishment of WIREs which had yet to be created.
As we discussed in our report in the October issue of NJ Cops Magazine, the Cannabis Regulatory Commission (CRC) issued temporary guidance allowing employers to use staff members or third parties to make decisions regarding whether an employee is impaired. The town also argued that until the issue of training and certification of WIREs was resolved, employees may be disciplined solely because of the presence of cannabis in their systems and without proof of impairment. The ALJ rejected the town’s position in all respects. In a very comprehensive and well reasoned decision concerning the interpretation and application of CREAMMA, the ALJ agreed with the officer’s position and concluded that the lack of a certified WIRE at a workplace does did not give the town the right to fire the officer. The judge relied, in part, on guidance issued by the attorney general in April 2022 that CREAMMA applied to law enforcement agencies and concluded that there is no different standard for law enforcement officers who test positive in random drug screenings without any proof of impairment. The ALJ also relied upon FAQs supporting the officer’s position that, under CREAMMA, an employee cannot be disciplined, let alone terminated, for off-duty cannabis use where there isn’t any proof of on-duty workplace impairment. The ALJ stated, “It is the clear intention of the attorney general that even law enforcement agencies must focus under CREAMMA on workplace or on-duty impairment.”
The ALJ also rejected the town’s position that it had the right to terminate the officer based solely on a positive random urine test under attorney general and departmental policy. The judge concluded, “The termination of appellant from his position as a police officer in the Town of West New York because of the result of his urine screen [of cannabis metabolites], without any proffered evidence that appellant was in any manner impaired on the job, must be reversed.”
Accordingly, the ALJ ordered that the officer be reinstated with full back pay and any other accompanying employment benefits. The judge also ordered that counsel fees be awarded to the officer as the prevailing party. Finally, the ALJ also issued an order requiring the town to begin paying appellant’s salary effective immediately pending final determination by the Civil Service Commission.
As noted above, the ALJ’s decision is only a recommended decision. It must be reviewed by the Civil Service Commission, which will issue a final agency decision adopting, modifying or reversing the recommended decision. Although we do not know at this point whether the town will appeal the decision, we expect that the Civil Service Commission will ultimately adopt it.
Because this decision is only a recommended decision, it has no precedential value and is not binding in any other jurisdictions. However, if it is adopted by the Civil Service Commission and upheld on any appeal, it will have an impact in both Civil service and non-civil service jurisdictions. Law enforcement officers who may test positive for cannabis on a drug screening should immediately consult with an experienced LPP attorney to review available options. We will keep the State PBA and members aware of developments in this case.