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Employers Can Expect New Problems When Recreational Marijuana Hits New Jersey - (11/17/2017)
United States-New Jersey


Executive Summary: A cornerstone of Governor-elect Phil Murphy’s campaign platform was the decriminalization of marijuana in New Jersey. The proposed bill most likely to become law with the new administration comes as employers are just getting comfortable with a workforce eligible for medical marijuana use. Though similar to current medical marijuana policy, the new law legalizing recreational marijuana use will affect hiring, discipline, and firing decisions in novel and important ways.

New Jersey Law Today

Since 2010, cannabis use has been limited to medicinal purposes under the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), codified at N.J.S.A. 24:6I-1, et seq. Under CUMMA, employers must reconcile accommodating employee-alleged disability (that is treated by prescription marijuana) with the competing need to ensure a safe and unimpaired workforce. CUMMA does not prevent employers from disciplining or terminating impaired employees, as the law specifically prohibits anyone—even someone with a prescription—from operating any vehicle or stationary heavy equipment while under the influence of marijuana. N.J.S.A. 24:6I-8. Likewise, nothing in CUMMA requires any New Jersey employer to accommodate the medical use of marijuana in any workplace. N.J.S.A. 24:6I-14.

New Jersey Law in 2018

Anticipating a change in administrations, New Jersey’s legislature introduced Bill S3195 in June 2017. If enacted, S3195 will legalize recreational marijuana use in New Jersey. Among other things, the bill will allow for the possession of up to one ounce of dried marijuana, 16 ounces of edible cannabis products, and 72 ounces of cannabis in liquid form. The sales tax on recreational purchases will start at seven percent in the first year, rising by five percent annually thereafter. Recreational marijuana would first be sold at the five existing medical marijuana dispensaries in New Jersey (in Bellmawr, Cranbury, Egg Harbor, Montclair, and Woodbridge), with other licensed locations to follow.

S3195 mirrors CUMMA because it does not require any New Jersey employer to permit or accommodate marijuana use in the workplace. Likewise, it does not affect the ability of employers to maintain zero-tolerance policies prohibiting marijuana use or intoxication by employees during work hours.

S3195, however, differs from CUMMA in one significant respect: It creates a separate cause of action making it unlawful for employers to take “any adverse employment action” against an employee merely because that person uses marijuana. Refusing to hire, or firing, such employees are two actions prohibited by S3195. This baseline prohibition is softened by only two caveats. First, an employer may affirmatively assert the defense that it has “a rational basis” for the adverse employment action which is “reasonably related to the employment.” This presumably includes safety-sensitive positions and instances in which the responsibilities of the current or prospective employee mandate the need for drug-free personnel. Second, employers will remain free to take adverse employment action against an employee if failure to do so places the employer in violation of federal law or causes it to lose a federal contract or funding.

Employers’ Bottom Line

The new legal claim created by S3195 joins New Jersey’s Law against Discrimination and Conscientious Employee Protection Act as yet another legal landmine facing New Jersey employers. Early indicators suggest S3195 will be fully implemented by the summer of 2018. In advance, hiring and disciplinary procedures and protocols should be updated to both maximize compliance with this new law and minimize management’s potential liability.

Ford & Harrison LLP - Mark A. Saloman

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