EDITOR’S NOTE: NJ Cannabis Insider is hosting a two-day business and networking conference March 9-10, featuring some of the state’s most prominent industry leaders. Tickets are limited.
Gov. Phil Murphy signed three laws that will legalize marijuana in New Jersey and immediately put an end to arrests Monday, but for some, another question lingers: Can I get fired from my job for smoking marijuana?
The short answer: for now, maybe.
Under the legalization law, companies cannot fire employees unless they can prove they were high while at work using both a physical test for THC, the active ingredient in marijuana, and testimony from an expert witness.
But the state Cannabis Regulatory Commission must still adopt rules and regulations to set this in stone and develop a program to train such witnesses, who will likely be people employed by the company in question. Developing those protocols could take six months.
The legalization law says the employee protections section became effective immediately Monday, but are not fully operational without the commission’s rules.
“It’s weird to have effective immediately but not yet operational” in a statute, said Jennifer Roselle, an attorney with Genova Burns who focuses on employment and labor. She noted the wording does not fully protect employers’ current drug testing policies or those who want to use marijuana in their free time now.
“If I’m an employer, I’m going to proceed with incredible amounts of caution,” she said. “If I’m an employee, who thinks it’s a free for all right now, I still potentially could lose my job, even if my employer takes the most conservative approach. It’s a gamble on both sides.”
Roselle said the “effective immediate but operational down the line” wording underscores the complications of building out a new marijuana industry.
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Once fully in place, the law will prohibit an employer from firing or refusing to hire a person who uses marijuana while off the clock. But it does permit employers who have “reasonable suspicion” a worker has gotten high during work, whether by noticing intoxicated behavior or in the aftermath of a workplace accident, to conduct a drug test and have a trained person evaluate them for signs of inebriation.
There are no real-time intoxication tests for marijuana as there are for alcohol, which led to complicated policy. THC can linger in the bloodstream for weeks after a person consumes weed.
Under the law, if those dual tests determine workers came to the job high, an employer can fire or discipline them.
“It’s going to be very difficult to enforce. I just don’t see how it’s going to work,” Sheila Mints, a cannabis attorney with Capehart Schatchard, told NJ Advance Media when the bill passed the Legislature late last year.
“It’s basically created a situation where it’s going to be difficult to manage it for the next several months — depending how quickly the state can get the regulatory structure up and running to resolve all these problems.”
Possessing and using marijuana carry no criminal penalties as of Monday. But there’s still no way to legally purchase it, and likely will not be for months.
Ray Cantor, vice president of government affairs at the New Jersey Business and Industry Association, said the association is interpreting the law to say current drug testing polices can stand for now.
But employers need to start preparing for an overhaul in their policies.
“We think existing law is still in place,” he said. “[Employers] can still what they’ve been doing. But they need to begin to become aware that those rules are going to change. So if you’re relying solely on drug tests right now, they should become familiar with what the law is going to require.”
The employment piece of the law proved controversial during legislative hearings. The law allows companies to conduct regular or pre-employment screenings in addition to testing people under the standard of reasonable suspicion.
But it does not let certain employers completely bar people from using marijuana in their free time, even if they work in safety-sensitive positions that involve heavy machinery or driving. Those industries have conducted regular drug tests for years and had zero-tolerance policies for marijuana.
Such a safety-sensitive exemption might put the law in conflict with the state constitution. Marijuana became not just legal by the Legislature, but as a constitutionally-protected right when New Jerseyans voted for it in November.
Only those who live in New Jersey and work for the federal government can be completely barred by an employer for marijuana use going forward. There are some 49,000 federal employees in the state.
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Amanda Hoover may be reached at ahoover@njadvancemedia.com. Follow her on Twitter @amandahoovernj.
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Can I be fired if I test positive for marijuana, even though weed was just legalized? What you need to know. - NJ.com
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