In recent years, employers adapted workplace policies and trainings to conform with changing state laws legalizing medical marijuana use. The landscape is continuing to evolve as many states have now prohibited adverse employment actions for employees’ recreational use of marijuana. New Jersey is one of those states. In February 2021, the New Jersey Cannabis Regulatory Enforcement Assistance, and Marketplace Modernization Act (the “Act”) legalized adult use of recreational marijuana which prohibits employers from taking adverse employment action solely based on an employee’s use of marijuana while off duty. The Act created many uncertainties for employers who seek a drug-free workplace. Recently, after much anticipation, New Jersey Cannabis Recreational Commission (the “Commission”), issued guidance for employers on the process/procedure that should be used when an employee is suspected of impairment in the workplace.
New Jersey Cannabis Recreational Commission Releases Guidance
On September 9, 2022, the New Jersey Cannabis Recreational Commission published new interim guidance for employers on how to respond when employees are suspected of marijuana impairment. The newly released guidance provides an alternative method for documenting behaviors giving rise to reasonable suspicion of on the job marijuana impairment using appropriate evidence-based protocols. The guidance identifies the role of an employer designated person assigned to assist in assessing whether an employee is under the influence in the workplace. Unlike with alcohol, where there is a legal presumption of impairment when a person’s blood alcohol level reaches a certain point, there is currently no such presumption of impairment for levels of marijuana contained in a person’s system. Further, the guidance recommends that employers should make a Reasonable Suspicion Observed Behavior Report that documents the behavior, physical signs, and evidence that supports such suspicion. If this does not yet exist, an employer should also create a Standard Operating Procedure for completing the report, which should include observations from the employee’s manager or supervisor. The Commission provided a template of a Reasonable Suspicion Report that employers may use.
Notwithstanding the Act, the guidance takes note of the fact that there are certain exceptions to an employers’ ability to take adverse employment actions against employees who may consume marijuana while off duty. Those exceptions apply to employers with federal contracts and those who conduct drug testing as mandated by federal law. In those limited circumstances, federal law trumps state law regarding marijuana usage. However, it should be noted that on October 6, 2022, President Biden issued a statement asking the Secretary of Health and Human Services and the Attorney General to review how marijuana is scheduled under federal law as current law classifies marijuana in Schedule I of the Controlled Substances Act, but drugs like fentanyl and methamphetamine are classified lower.
Other States that Protect Recreational Marijuana Usage
Legalization of medical and recreational marijuana use continues to spread across the United States despite marijuana remaining a controlled substance under federal law. There are nineteen states and the District of Columbia (Alaska, Arizona, California, Colorado, Connecticut, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington) that have passed laws that prohibit an employer from taking adverse employment actions solely as a result of a positive marijuana drug test. In DC, the law prohibits an employer from refusing to hire, terminate from employment, suspend, fail to promote, demote, or penalize an individual because of that individuals use of cannabis; status as a medical cannabis program patient; or for having the presence of cannabinoid metabolites in [their] bodily fluids without additional factors indicating impairment.
In DC, in addition to demonstrating impairment, employers must also demonstrate that the employees’ behaviors adversely impact work performance or inhibit employers’ ability to provide a safe and healthy work environment.
Implications and Takeaways
Due to the interim guidance and the growing number of states implementing laws about recreational marijuana, employers should:
- Be aware of the marijuana laws in the states in which you have employees to be sure any employment action is in alignment with those laws.
- Modify observation and discipline policies to focus on documenting reasonable suspicion of marijuana impairment. Consider using New Jersey’s Reasonable Suspicion Observed Behavior Report, which can be found here.
- Train and equip managers and human resource professionals with tools for objectively identifying and documenting behaviors giving rise to reasonable suspicion of marijuana impairment in the workplace.
Miles & Stockbridge’s labor and employment lawyers are well versed in navigating complex workplace law issues, including how state legalization of marijuana affects your workplace. Should you need any guidance on how to approach the questions discussed herein, please reach out to our labor and employment practice group for further assistance.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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