By Katherine Miller
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In November 2020 voters in New Jersey approved recreational cannabis legalization; however, the legislature was left to make many of the logistical decisions necessary to get the program up and running. Governor Phil Murphy signed the first few of undoubtedly many bills in late February 2021 to put a regulatory framework in place. Although three bills (AB 21, AB 1897, and AB 5342) were signed, only AB 21 has significant impact on workplace processes and procedures.
AB 21 Overview
AB 21 puts in place procedures to regulate personal cannabis sales and use in the state of New Jersey. It establishes the Cannabis Regulatory Commission (the Commission) that will regulate cannabis across the state, likely providing further guidance as they put the program in place. Additionally, AB 21 removes cannabis as a Schedule I drug in the state – of course, it is still a Schedule I drug on the federal level. Under the newly enacted bill, legal cannabis is regulated in a similar fashion to legal alcohol.
AB 21 and the Workplace
AB 21 provides guidance for New Jersey employers regarding recreational cannabis and the workplace. Employers are not permitted to refuse to hire, refuse to employ, discharge, or take adverse employment action against an individual who does or does not use recreational cannabis. An employee can be required to undergo a drug test if there is a reasonable suspicion that the employee used cannabis while engaged in work responsibilities. Additionally, an employee can be required to undergo a drug test if there are observable signs of intoxication linked to cannabis use or if there is a work-related accident that is subject to an investigation. Employers can use the results of a drug test to aid in determining appropriate employment action for employees. For example, employers are permitted to dismiss an employee, suspend an employee, or demote an employee based on the results of a drug test.
New Jersey employers maintain their right and obligation to preserve a drug- and alcohol-free workplace. Employers are not required to permit or accommodate the use, consumption, possession, sale, or growth of cannabis in the workplace. Employers can have policies in place that prohibit the use of cannabis or the intoxication of employees during work hours.
The Workplace Impairment Recognition Expert
New Jersey is the first state to enact requirements for an impairment recognition expert, but it is likely that we will see more states enact similar requirements as the question of cannabis impairment becomes more of a concern. 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. A certified individual will have undergone education and training to detect and identify an employee’s use of or impairment from cannabis or another substance.
While the requirements for the certification have not yet been determined, the statute states that there will be a minimum number of curriculum courses that will be required in order to be certified, and organizations outside of the Commission and the Police Training Commission will be able to become approved to offer the Workplace Impairment Recognition Expert training.
When Will the Law Be Effective?
AB 21 is immediately effective but will only be operational 180 days post-passage (August 21, 2021). It remains to be seen if the Commission will have the requirements for the Workplace Impairment Recognition Expert certification outlined by that date, or if certain requirements outlined in the bill will have a delayed implementation date in order to permit a full realization of the Commission’s vision.
Conclusion
AB 21 is likely the first of many bills that will impact workplace drug and alcohol testing procedures in New Jersey now that recreational cannabis is legal. Additionally, it is likely that the state will see court cases that further flush out what employers can and cannot do in the state. For now, New Jersey employers are entering uncharted waters as they attempt to meet the Workplace Impairment Recognition Expert standards and begin looking for measurable ways to detect impairment in the workplace.
