In November, New Jersey voters said “yes” to the legalization of recreational marijuana.  On February 22, 2021, Governor Phil Murphy signed legislation that legalized and decriminalized recreational marijuana and established a system for a recreational marijuana industry in New Jersey.

Importantly, the new legislation addresses many issues of significance affecting the employer-employee relationship.  For example:

• Employers may not take adverse actions in the application or hiring process or against current employees because they are cannabis users;
• An employee or applicant may not be subject to an adverse action solely due to a positive drug test finding the presence of cannabis in the employee’s system;
• Employers may require employees to undergo drug tests:
  • based upon a reasonable suspicion of an employee’s usage of a cannabis item while engaged in the performance of work responsibilities;
  • upon finding any observable signs of intoxication related to usage of a cannabis item;
  • following a work-related accident subject to investigation by the employer;
  • randomly (where consistent with other state law);
  • as part of a pre-employment screening; or
  • regular screening of current employees to determine use during work hours.
• The drug tests permitted above shall include scientifically reliable objective testing methods and procedures (blood, urine, or saliva) and a physical evaluation in order to determine an employee’s state of impairment. The physical evaluation must be conducted by an individual with the necessary certification to opine on the employee’s state of impairment (Workplace Impairment Recognition Expert). The Workplace Impairment Recognition Expert certification standards have not yet been established.
• Employers may continue to have policies in place prohibiting the use, possession and transfer of cannabis items in the workplace and may continue to have drug and alcohol free workplace policies in place.
• Employers may also continue to comply with federal law, rules and regulations where they are subject to such laws or regulations due to employment of individuals covered by Department of Transportation requirements or in order to comply with federal laws if the business is a federal contractor.

The legislation is effective immediately, but only becomes operative upon the adoption of initial rules and regulations by the Commission established by the legislation. Based on the legislation, employers should:

• Review and revise workplace drug and alcohol policies including those related to drug testing procedures;
• Ensure that they have certified “Workplace Impairment Recognition Experts” employed or engaged, as required under the law once that certification training becomes available; and
• Be sure to consider each hiring, discipline and discharge decision related to drug testing and workplace impairment carefully so as not run afoul of the new legislation.

Keep an eye out in the days to come for our more detailed publication on marijuana laws in the state, both medical and recreational, and how those laws affect New Jersey employers.