The Governor of New Jersey, Phil Murphy, signed three bills into law on February 22, 2021 pertaining to recreational cannabis months after voters approved it in the November election. This makes New Jersey the 13th state to legalize marijuana for recreational purposes and regulates the sale of cannabis to those over the age of 21.
Public Question 1 legalized the possession and use of marijuana for individuals aged 21 and older. It also placed a limit on sales tax for recreational marijuana. However, Public Question 1 did not provide a regulatory framework for sales or guidance for employers. Assembly Bill 21, Assembly Bill 1897, and Assembly Bill 5342 all contain information about different aspects of the state’s recreational cannabis program.
Assembly Bill 21
Assembly Bill 21 (AB 21) regulates personal cannabis use via the Cannabis Regulatory Commission (the Commission) and removes cannabis as a Schedule I drug. AB 21 stipulates that legal cannabis shall be regulated in a similar fashion to alcohol in the state. AB 21 provides some guidance for employers. Employers shall not refuse to hire, refuse to employ, discharge an individual, or take adverse employment action against an individual who does or does not use cannabis. Employers may require employees to undergo a drug test if there is a reasonable suspicion of cannabis use while engaged in work responsibilities, if there are observable signs of intoxication related to cannabis use, or if there is a work-related accident subject to investigation. Employers can use the results of said test when determining appropriate employment action, which may include, but is not limited to, dismissal, suspension, or demotion.
AB 21 also includes some specifics about impairment in the workplace. The Commission, in conjunction with the Police Training Commission, will prescribe standards for a Workplace Impairment Recognition Expert certification that can be issued to employees or contractors. The certification will demonstrate that an individual has undergone education and training to detect and identify an employee’s use of or impairment from cannabis or another substance. The Commission will provide information on the minimum number of curriculum courses required for the certification as well as standards of approval for organizations that would like to offer certification.
Employers are not impacted in their right and obligation to maintain a drug- and alcohol-free workplace. Employers are not required to permit or accommodate the use, consumption, possession, etc., of cannabis in the workplace. Employers retain the ability to have policies prohibiting the use of cannabis or the intoxication of employees during work hours. The sections of AB 21 pertaining to employers are effective immediately but are only “operational” after 180 days (August 21, 2021) OR within 45 days of the appointment of all five members of the Commission, whichever date is later.
Assembly Bill 1897
Assembly Bill 1897 decriminalizes the possession of 10 grams or less of cannabis. It does not provide any guidance for employers on cannabis in the workplace.
Assembly Bill 5342
Assembly Bill 5342 concerns the underage possession and/or use of cannabis. Underage possession of cannabis items is subject to a civil penalty of $50 for those ages 18 and up, or a point-of-violation warning or juvenile intervention for those under age 18. The legislation does not provide any guidance for employers pertaining to cannabis in the workplace.
What Can DISA Do?
As laws continue to change regarding the legalization of marijuana, it’s vital that employers have a comprehensive employee screening policy. As your trusted third-party administrator (TPA), DISA can ensure you remain compliance while building a culture of safety in your workplace. Our professionals can assist you with creating a clear and concise written drug and alcohol testing policy that abides by state laws and keep you informed of the latest changes to ensure you maintain compliance standards.
In addition to a clear and concise written policy, reasonable suspicion testing and training are an added level of protection after pre-employment testing to continue to deter employees from using. In states where marijuana is legal, establishing and implementing a Medical Disclosure Policy will ensure that employees notify you of prescriptions that could cause impairment while on the job, posing greater risks to the workplace.
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About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background check, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.