On March 10, 2021, less than three weeks after New Jersey Governor Phil Murphy signed legislation legalizing recreational marijuana and establishing employee protections for off duty marijuana use, a State lawmaker has introduced a bill (NJ S 3525) to amend the employment related provisions of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”) to address concerns that employers will not be able to control marijuana use, or the effects of marijuana use, in the workplace for safety sensitive positions.
Senator Paul Sarlo introduced the bill to revise the employment provisions of the new law. The bill maintains protections for off-duty marijuana use, except for employees at a “critical infrastructure facility” or a construction site with an “exceptionally high risk” of potential harm to other employees or the public if an employee is impaired through cannabis use. However, approval to designate employees in these safety sensitive positions can be made only by the Cannabis Regulatory Commission upon application by the employer, with exceptions. Four categories of employees may be prohibited from off-duty marijuana use without approval by the Commission: 1) employees operating, maintaining, constructing or repairing public utilities subject to the jurisdiction of the Board of Utilities; 2) transportation jobs falling under federal Department of Transportation requirements; 3) those subject to the Railway Labor Act; and 4) law enforcement officers who carry firearms. The bill also seeks to limit pre-employment drug testing for cannabis, except for employees in the above categories.
Finally, the bill seeks to eliminate the requirement that an employer designate and certify employees as Workplace Impairment Recognition Experts, leaving this to the discretion of the employer whether to do so in order to support drug testing and determine an employee’s state of impairment while engaged in work duties. The bill’s statement explains: “An employer shall remain free to use scientifically reliable testing services and to exercise its own judgment in making a good faith suspicion determination.”
Although the proposed legislation is in its infancy, it demonstrates that lawmakers are aware of and focused on filling in the gaps of NJCREAMMA when it comes to the use of legalized cannabis by employees in safety sensitive positions. We will continue to provide updates on developments in this legislation, as well as the Commission’s impending drug testing regulations.