An employers guide to legal cannabis

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The landscape of New Jersey changed on April 21 with the first legal adult-use sales of cannabis, which is now available for purchase by anyone 21 and over. To navigate these new waters, employers need to know what rules they can legally impose on their employees with regard to cannabis usage. That rule, save for a handful of federally regulated jobs, can’t tell employees what to do in their personal time.

“One thing they need to know is, to some extent, they need to treat it like alcohol consumption. If people are doing things off duty and it’s not impacting their job, regardless of the employer’s personal beliefs, they’re going to have to live with the fact that recreational cannabis use is now legal and being bought in New Jersey,” said Matt Collins, labor and employment department co-chair at Brach Eichler in Roseland.

Under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, employers can prohibit workers from getting high or having cannabis on them on the job, but are prohibited themselves from discrimination against folks who consume cannabis. Therefore, employers can’t terminate an employee solely based on their use of cannabis, thus giving employees more leeway than they have in several other “green” states: using cannabis in Arizona and California can still get you fired. The same is true in Colorado, though the state Legislature is trying to change that.

Addressing alcohol and cannabis use differs because of testing capabilities. There are simple and reliable tests to determine alcohol intoxication, but an analog doesn’t exist for cannabis.

While several tests can determine cannabinoids present in someone’s body, they remain in users’ systems long after impairment has subsided.

To make up for that, CREAMMA requires employers use a Workplace Impairment Recognition Expert, or WIREs, to conduct a “physical evaluation” of someone who is suspected of being high at work before they administer a drug test. CREAMMA directs the Cannabis Regulatory Commission to develop standards for the WIRE certification, which will likely mirror the role of Drug Recognition Experts, or DREs, used by law enforcement to determine if someone is driving while high.

However, the CRC has yet to create WIRE regulations. In response to a request for a timeline for WIRE rules and guidance on what employers should do in the meantime, Cannabis Regulatory Commission Spokesperson Toni-Anne Blake said simply that, “The Commission has not yet adopted regulations for Workplace Impairment Recognitions Recognition.”

One potential reason: the efficacy of DREs is currently being challenged in the New Jersey Supreme Court in State v. Olenowski, which will likely determine the scientific reliability and admissibility of the DREs used to assess whether arrestees are under the influence of illegal drugs.

“Right now, the employers probably can test as long as they have reasonable suspicion,” Collins said. “If someone is exhibiting signs that are consistent with being impaired by marijuana, they probably can test, but is it 100% clear? Not really. Because we haven’t gotten that guidance.”

Cole Schotz associate Marissa Mastroianni said that New Jersey employers should consult with counsel to update their substance-free workplace policies and drug testing protocols.

“With more and more employees engaging in legal off-duty cannabis use, employers will face increased risks of claims brought by current and former employees alleging violations of the employment protections passed for cannabis users. Employers that are proactive in understanding their rights and obligations and enacting the right policies and procedures at the workplace will mitigate against any legal exposure created by these claims and, at the same time, improve employee morale and retention,” Mastroianni said.

On the adult use market opening, New Jersey Chamber of Commerce Executive Vice President of Government Relations Mike Egenton said the trade group fields inquires all the time from employers wondering what they can do.

“With any new law, there’s always going to be the [component of] ‘it’ll work its way out.’ The one takeaway for a lot of our members is the workplace safety issue. Obviously, there’s a concern about individuals who work in high-risk areas like a nuclear refinery, a chemical plant, or even an employee who has to handle money every day,” Egenton said. “There are questions in how employers make sure they’re not stepping over the line, but much like with alcohol they want to require a drug free workplace and they want to continue to do their business operations in a safe way.”

The chamber will “continue working with the [CRC] on the workplace safety component,” he said, noting that he knows it’s “going to be a work in progress” as WIRE regulations are hashed out. Egenton noted as well that inquiries from new cannabis businesses interested in joining the chamber have started to come in and that they’re “keeping those doors open,” and suggested that ag-centric South Jersey might be a suitable place for to grow cannabis.

Acting Attorney General Matt Platkin issued a memo to law enforcement leaders earlier this month stating that CREAMMA allows cops to consume cannabis while off duty. The memo has been met with mixed reviews. Gov. Phil Murphy said at a news conference April 18 that he’s open to legislation banning cops from lighting up off duty; and both Jersey City Mayor Steven Fulop and Bayonne Mayor Jimmy Davis declared days later that cops under their watch, even off duty, will be fired for using cannabis.

“There will be no ambiguity on how JCPD will approach this [and] we will pursue legally if tested via the federal court system. Bottom line is trust is fragile between communities/police [and] we should make sure that there isn’t compromised judgment [and] NJ is [a]n outlier nationally on not having a carve out for law enforcement,” Fulop tweeted on April 20.

Federal law also prohibits those who possess a firearm from consuming cannabis, even in legal adult use states, which precludes those who carry guns—law enforcement officers, hunters—from getting high. Federal law also prohibits long-haul truck drivers and those with a commercial drivers’ license from consuming cannabis.

“Throughout this advocacy effort we have said that there may be certain individuals who may still be prohibited from using cannabis based upon their employment. Those are going to be adult decisions that people have to make on whether or not they want to be employed or not,” said Archer partner Bill Caruso, who’s actively lobbied the Legislature for legal medical and adult use cannabis for years.