On September 12, 2018, New Jersey’s Senate offered proposed amendments to S. 2701, inching the New Jersey Marijuana Legalization Act toward enactment. Introduced in the Senate on June 7, 2018, the proposed amendments leave the bulk of the bill intact, namely:
- If enacted, the bill legalizes adult recreational marijuana use in New Jersey. Among other things, the bill will allow for the possession of up to one ounce of dried marijuana, 16 ounces of edible cannabis products, and 72 ounces of cannabis in liquid form.
- Consistent with the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), the bill does not require employers to permit or accommodate the use, consumption, or possession of cannabis in the workplace nor affect employers’ ability to have policies prohibiting cannabis use or intoxication by employees during work hours.
- Like CUMMA, S.2703 does not prevent employers from disciplining or terminating impaired employees and prohibits anyone from operating a vehicle while under the influence of marijuana.
- Unlike CUMMA, S.2703 creates a separate cause of action making it unlawful for employers to take “any adverse employment action” against an employee merely because that person uses marijuana. Refusing to hire (or firing) such employees are two actions prohibited by S.2703. This baseline prohibition is softened by only two caveats:
- First, an employer may affirmatively assert the defense it has “a rational basis” for the adverse employment action which is “reasonably related to the employment.” This presumably includes safety-sensitive positions and instances in which the responsibilities of the current or prospective employee mandate the need for drug-free personnel.
- Second, employers will remain free to take adverse employment action against an employee if failure to do so places the employer in violation of federal law or causes it to lose a federal contract or funding.
- But employers must reconcile accommodating employee-alleged disability (that is treated by prescription marijuana) with the competing need to ensure a safe and unimpaired workforce.
The proposed amendments are largely technical and do not alter employers’ rights and obligations. Beyond changing the name of the Act to the “New Jersey Cannabis Regulatory Act,” perhaps the most notable amendment allows licensed marijuana retailers to fulfill consumer orders by delivery. This addition seems intended to spur job creation by allowing delivery drivers and mail order to provide cannabis to adult consumers.
If you have any questions regarding this decision or other issues impacting New Jersey employers, please feel free to contact the author of this Alert, Mark Saloman, msaloman@fordharrison.com, who is a partner in our Berkeley Heights, New Jersey office. Of course, you may also contact the FordHarrison attorney with whom you usually work.