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By: Courtney Knight
New Jersey recreational cannabis sales began April 21, 2022 and have since amounted $24 million in sales. But what happens when all of those legal users show up to work and/or apply for a new job? The State’s employers have been left stranded while the battles continue in rulemaking and the Courts. During a legislative hearing on May 12, 2022, the executive director of the New Jersey Cannabis Regulatory Commission (CRC) could not provide a timeline for when the regulations related to employment would be finalized.
The New Jersey Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA), that legalized adult recreation use, prevents employers from refusing to hire, or from taking any adverse employment action against an employee solely because of their use of recreational cannabis during personal time. The Act preserves the employer’s right to prohibit cannabis use during the workday and at the workplace. The distinction, however, cannot be proven by traditional drug testing methods, as cannabis results can appear up to a month after use.
The legislature intended for employers to use a combination of traditional drug testing and specially trained “Workplace Impairment Recognition Experts” to document behavioral evidence to prove the time of intoxication. When the CRC adopted their initial and temporary rules on August 19, 2021, they did little to address recreational cannabis in the employment context, except to suspend the controversial requirement for a behavioral evaluation prior to any cannabis related employment action.
Problematically, the scientific basis for this type of behavioral analysis is presently being challenged in the New Jersey Supreme Court. State v. Olenowski, 247 N.J. 242, 245 (2019), challenges the legitimacy of the police use of “Drug Recognition Experts,” (the training upon which the “Workplace Impairment Recognition Expert certification” [WIRE] was intended to be based). That case is currently remanded to a Special Master for a plenary hearing on the scientific reliability and acceptance of each part of the twelve-step protocol used in such behavioral evaluations. The results of that hearing are not expected until late Summer or early Fall 2022.
The CRC’s initial rules are set to expire August 18, 2022, so final rules are anticipated this summer, and are supposed to contain details regarding the WIRE certification and evaluation process that employers must use. With only a few months left, the CRC has not provided any hint of what employers can expect those rules to contain.
In the interim, employers should be careful to document evidence of workplace intoxication before taking employment action against an employee who tests positive for marijuana. Employers should also consult with counsel regarding related considerations such as medical cannabis accommodations and federal requirements, which may preempt State laws.
For more information, please contact Courtney M. Knight or your local FMG lawyer.