Legalized marijuana and the new normal
By Robert A. Fagella, Esq. and Paul L. Kleinbaum, Esq.
Legalized recreational use of cannabis has arrived in New Jersey. On Feb. 22, Governor Phil Murphy signed the legislation that allows 21-years-olds to use and possess cannabis. And for those younger than 21, marijuana is now decriminalized. The new laws are enabling legislation resulting from New Jersey voters overwhelmingly approving an amendment to the state constitution calling for legalization.
This tidal wave change, years in the making, will significantly impact all workplaces and workers in the public and private sectors. For those in law enforcement, the law implicates both their rights as employees, and their obligation to enforce the law.
The three bills Governor Murphy signed into law that will provide the legal and regulatory framework for recreational cannabis use are: (1) the New Jersey Cannabis Regulatory, Enforcement Assistance Act (NJCREAMMA, S21/A21), which legalizes cannabis use and possession; (2) another bill that removes criminal and civil penalties for possession (the decriminalization bill, S2535/A1897); and a third bill that addresses concerns related to underage use (the clean-up bill, S3454/A5342). These laws do not affect existing prohibitions on any other unlawful drugs such as heroin, cocaine, amphetamines, barbiturates and the like. The changes relate only to cannabis.
Usage while off-duty
There is no doubt that the long-standing practices regarding marijuana use and possession have been changed radically by the new statutes. New Jersey has now become the first state to explicitly protect employees who use cannabis while off-duty and outside the workplace. In general, employers can no longer penalize, suspend or terminate employees for off-duty cannabis use.
The new laws seek to provide a bright line regarding cannabis usage. Cannabis usage, or being under its influence, is always prohibited while working. Thus, employers still have the right to enforce zero tolerance drug policies in the workplace during work hours. All employer prohibitions on use, possession and impairment remain lawful when limited to employees on the clock. Conversely, off duty is considered personal and permissible.
But ambiguities remain. As a rule of thumb, employees who hold positions that could be described as safety-sensitive – i.e. police, firefighters, healthcare workers and operators of heavy machinery – should not yet assume the new off-duty protections apply to them, and we advise to go very cautiously before using cannabis off-duty. Guidelines are expected shortly from the attorney general to provide greater understanding of off-duty law enforcement usage.
As you probably know, medical marijuana has been lawful for several years. An individual with a lawful marijuana prescription for legitimate health issues is authorized to use and possess it off duty. But the law had remained unsettled whether an employer could nonetheless decide to terminate an employee with a lawful prescription. While the regulatory and statutory scheme for medical marijuana has not changed, it would appear to now be much less relevant in light of the new recreational law, which encompasses any type of marijuana usage. If anything, a prescription for medical marijuana will insulate the employee even further from adverse actions.
Drug testing, workplace impairment experts and discipline
Because marijuana can remain in the user’s system for up to 30 days, the statute attempts to address how to distinguish between prohibited on-duty impairment and authorized off-duty usage. New Jersey is now the first state to explicitly limit an employer’s ability to take disciplinary action against an employee solely on the basis of a positive drug test.
Because the statute recognizes that marijuana may be present in an individual’s system without recent usage, an employer is now required to couple any drug test with some other factor, such as safety concerns or an observable impairment. With respect to signs of impairment, the employer must employ or retain a certified “impairment expert” at the workplace to conduct a physical evaluation of the employee if on-duty use or impairment is suspected.
It would seem that an employer’s or supervisor’s lay observation of suspected impairment is insufficient. A licensure procedure will be created to train and certify such impairment experts. Only if both the impairment expert and drug test indicate intoxication may an employer take disciplinary action.
There is conflicting language in the law about whether employers are limited with respect to when they can drug test employees for cannabis. One section of the law states that employers may conduct drug testing randomly or as part of pre-employment screening and routine testing of current employees. But the law also states that prior to conducting a drug test, an employer must have a “reasonable suspicion” that an employee is using drugs at work, demonstrates signs of impairment or is involved in a work-related accident.
It remains unsettled as to whether employers need reasonable suspicion for requiring a drug test or are permitted to test randomly. But in either case, the drug test must be coupled with a determination of current intoxication before discipline can be imposed. However, this applies only to a positive test for the presence of cannabis. Testing for other unlawful drugs, and consequences for their usage, would appear to be unchanged.
Compounding the uncertainty is that there is no scientifically accepted consensus of what level of cannabis presence would constitute impairment. For example, the new law requires any drug test to be scientifically reliable. But this remains an unclear standard since, as noted, there is no scientific consensus about how to measure an individual’s level of impairment when cannabis is detected. Even with an impairment expert, there will undoubtedly be disagreements whether an employee is actually intoxicated/high while working.
Pending federal legislation
Further complicating the issue is that cannabis remains illegal under federal law. While the federal government has generally not taken action to enforce the federal statutes in states where cannabis is lawful, existing federal regulatory schemes should still be deemed intact.
This confusing patchwork will be significantly clarified if pending federal legislation is enacted. This would effectively give states like New Jersey more power to regulate cannabis on their own. Reform could also mean many federal agencies would remove marijuana from its list of drugs required for monitoring, even in safety-sensitive positions.
The Marijuana Opportunity, Reinvestment and Expungement (MORE) act was passed by the House in December 2020. Similar legislation sponsored by Senator Cory Booker is pending in the Senate. Under the MORE act, marijuana would be decriminalized throughout the U.S. and nonviolent marijuana-related convictions would be expunged. President Biden has said he is in favor of marijuana decriminalization, rescheduling marijuana, medical cannabis legalization and expungements for people with prior cannabis convictions.
Enforcement of marijuana laws for juveniles
While the foregoing discussion involves the rights of law enforcement officers in their status as employees, the new laws also impose significant hurdles – and potential criminal and civil penalties – when officers attempt to enforce the law. Cannabis possession by juveniles is now decriminalized. Penalties for use or possession by minors are limited to an initial written warning, eventually topping off at nominal fines for repeat offenders.
The law significantly limits how officers may approach juveniles suspected of possession and/or usage, describes what related actions such as searches of person or property are permissible and mandates a panoply of procedural requirements such as body camera usage throughout any encounter with a juvenile. Most remarkably, the new law actually imposes criminal penalties upon officers who knowingly fail to approach or interact with juveniles pursuant to the statutory requirements. Put simply, the law as written contains much greater risks and penalties for officers enforcing the law regarding juveniles than such minors can actually suffer for violating the law.
Specific examples of the ambiguities of the law are so numerous that they are beyond the scope of this article. Guidance from the chief law enforcement officers of each department, prosecutor’s offices and the attorney general are urgently needed to allow officers to understand their obligations under these remarkable new provisions.
Questions and areas where the law remains vague
It appears obvious that despite the law’s broad strokes regarding legislation, uncertainty and many open questions remain. The Cannabis Regulatory Commission, which was created in 2019 to regulate medical marijuana, is tasked with regulating recreational cannabis. Among the many issues which are expected to be addressed by the commission within the next year, include:
- What testing, if any, is deemed to be “scientifically reliable”?
- What is the necessary training to become a certified impairment expert?
- What are considered observable signs of intoxication according to the certified impairment experts?
- What level of marijuana presence in an employee’s system can be deemed to constitute impairment?
- What opposing evidence could an employer rely upon to contradict an opinion of “current” intoxication?
- How will New Jersey reconcile its law with conflicting federal statutes?
Clearly, these are uncharted waters. New rules and regulations related to New Jersey’s cannabis law will be rapidly evolving. We will keep you advised of all new developments.