Now that recreational marijuana is legal in NJ, can local employers still drug test? Refuse to hire pot smokers??

Well, it depends.

***ducks rotten tomatoes***

Yesterday, New Jersey Governor Phil Murphy signed three bills into law, “legalizing and regulating cannabis use and possession for adults 21 years and older (A21 – “The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act”) and decriminalizing marijuana and hashish possession (A1897). The Governor also signed S3454, clarifying marijuana and cannabis use and possession penalties for individuals younger than 21 years old.”

Ok, so your NJ employees can smoke marijuana legally, even if they don’t need it for a medical condition. That begs several questions:

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But, before I answer those questions, I think I’ll invite you to another edition of The Employer Handbook Zoom Office Hour, which will be this Friday at Noon ET.

My special guest will be my rockstar employment law partner, Gordon Berger. Gordon is one of the leading attorneys in the country on HR outsourcing, PEOs, ASO’s and the like. We may discuss some of that.

We’ll also update you on the status of President Biden’s massive COVID relief bill and how it could impact employers. Plus, I want to cover some Department of Labor wage and hour news and take your questions.

Invite a friend, email me your questions, and register here.

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Can we refuse to hire someone who smokes marijuana outside of work?

Probably not.

A21 says that employers can’t refuse to hire or employ any person, nor can they discharge from employment or take any adverse action against any employee concerning compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.

NJ has always had off-duty conduct rules that stopped employers from dinging individuals that smoke outside of work. Now, it includes marijuana too.

A1897 also makes it unlawful for an employer to rely solely upon or require any applicant to disclose or reveal, or take any adverse action against any applicant for employment because of an arrest, charge, conviction, or adjudication of delinquency for a marijuana-related crime like possession or manufacture, or distribution.

Yes, you may have to hire a pot dealer, grower, entrepreneur too.

Can we drug test for marijuana at all?

Yes, in certain situations like reasonable suspicion of being under the influence at work or following a work-related accident. A drug test may also be done randomly by the employer or as part of a pre-employment screening or regular screening of current employees to determine use during an employee’s prescribed work hours.

But, here’s the thing.

The drug test must include scientifically reliable objective testing methods and procedures, such as testing blood, urine, or saliva, and a physical evaluation to determine an employee’s state of impairment. Plus, an individual with the necessary certifications must conduct the physical evaluation. New Jersey is going to issue regulations and certify these individuals. (I have no idea what employers can do in the interim.)

Do the same rules apply to federal contractors and other regulated industries?

No.

Can we still maintain a drug-and-alcohol-free workplace?

Yes.

Any duty to accommodate marijuana use at work?

No.

Should NJ employers find a smartypants employment lawyer like Eric to review and revise their drug and alcohol policies?

What do you think? 🙄