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Recreational Marijuana Workplace Safety Law Fast Facts

 —Background—

On February 22, 2021, the Governor signed into law A-21 / S-21, legalizing the use of recreational marijuana in New Jersey. The comprehensive law, created after New Jerseyans voted to legalize recreational marijuana by referendum on Nov. 3, 2020, covers a range of social, commercial, regulatory, and legal logistics.

This Fast Facts is intended to help employers understand how this law will impact their ability to maintain a drugfree workplace.

Which parts of A-21/S-21 are most important for understanding changes to workplace safety rules?
Section 48: Employers, Driving, Minors and Control of Property
Section 53: Limitations

How does this law impact an employer’s ability to maintain a safe and drugfree workplace?
Employers are not required to allow the use of marijuana by their employees while they are at work, nor are they required to permit intoxication. However, employers will not be able to make employment decisions, with respect to current or prospective employees, because an individual does or does not use marijuana.

Another key impact is that a drug test now has two components:

  1. a “scientifically reliable objective testing” method and procedure
    • this could be a blood, urine, or saliva test
  2. a “physical evaluation”
    • this would be administered by a Workplace Impairment Recognition Expert (WIRE)

Can I still drug test my employees? What rules do I need to adhere to?
Yes. Acceptable reasons for drug testing include:

  • The employer has a “reasonable suspicion of an employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities, or upon finding any observable signs of intoxication related to usage of a cannabis item, or following a work-related accident subject to investigation by the employer.”
  • Random drug tests
  • Pre-employment screening drug tests
  • Regular screening of current employees to determine use during work hours

However, employees are protected against “any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid…” meaning that an employer likely cannot take adverse action solely upon failure of the blood, urine, or saliva component of the drug test.

Still, an employer is allowed to use the results of the drug test, which includes the blood, urine, or saliva test and the physical examination, when making subsequent employment decisions, which can include ‘dismissal, suspension, demotion, or other disciplinary action.’

What is a Drug Recognition Expert (DRE)?
A police officer who has been trained to detect, identify, and apprehend drug-impaired drivers.

What is a Workplace Impairment Recognition Expert (WIRE)?
Essentially the workplace, or civilian, version of a DRE. An employer can contract, or have a current employee undergo requisite training, to become a WIRE for the purposes of performing a physical evaluation of an employee who is suspected of being under the influence while at work.

Any individual who has completed a DRE program through a school approved by the Police Training Commission or adequately similar training offered by a federal, state, public, or private agency will be issued a certification by the Cannabis Regulatory Commission.

Are employers required to have a Workplace Impairment Recognition Experts in their workplace?
No. However, a drug test now consists of a physical examination component, which must be performed by a WIRE. Therefore, if an employer wants to drug test an employee for any of the acceptable reasons laid out above, then they must use a WIRE.

What new rights does this law give to employees?
Since the law legalizes adult use of recreational marijuana, certain employee protections follow from that. Namely, an employer cannot “refuse to hire or employ…or…discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment” because of an individual’s cannabis usage.

What are employers still allowed to do in their workplace safety rules as it relates to recreational marijuana?

  • Maintain a drugfree and alcohol-free workplace
  • Prohibit the “use, consumption, being under the influence, possession, transfer, display, transportation, sale, or growth of cannabis or cannabis items in the workplace”
  • Prohibit employees from using cannabis or being intoxicated during work hours

What about federal law?
Recreational marijuana usage is still illegal at the federal level, meaning that adherence to some of the rules in New Jersey’s law contradicts federal law.

Accordingly, the law specifies that it does not intend:

  • “To amend or affect in any way any State or federal law pertaining to employment matters;
  • To prohibit a recipient of a federal grant or an applicant for a federal grant from prohibiting the manufacture, transportation, delivery, possession, or use of cannabis items to the extent necessary to satisfy federal requirements for the grant;
  • To prohibit a party to a federal contract or a person applying to be a party to a federal contract from prohibiting the manufacture, transport, distribution, delivery, possession, or use of cannabis items to the extent necessary to comply with the terms and conditions of the contract or to satisfy federal requirements for the contract….”

In this way, the law creates carveouts for employers who, due to the existence or pursuit of a contract with the federal government, are required to adhere to certain provisions that contradict New Jersey’s laws on adult-use recreational marijuana.

Still, the law is silent on situations where federal law or regulation may require blood, urine, or saliva drug testing. Federal law may preempt state law in these cases, meaning that adverse employment action could be taken without the need for a WIRE performing a physical examination. However, there is uncertainty in this area, and it might be the subject of future litigation or regulation.

What if my employees need a CDL license or federal law requires random drug tests and a zero- tolerance policy based on a blood, urine, or saliva test alone?
These questions remain uncertain as the law does not address them specifically, but it is likely that federal law in these areas of direct conflict will preempt state law.  An attorney should be consulted for implementation issues.

What if our Collective Bargaining Agreement (CBA) contains a more restrictive drug testing and zero-tolerance policy than that in the legislation?
This also is not addressed in the legislation, which will create uncertainty. However, it is unclear if the CBA will prevail or be deemed illegal under the law.

 

This information should not be construed as constituting specific legal advice. It is intended to provide general information about this subject and general compliance strategies. For specific legal advice, NJBIA strongly recommends members consult with their attorney.