Summary

New Jersey has joined a growing list of states that have legalized recreational marijuana. On Election Day, roughly two-thirds of New Jersey voters said “yes” to a ballot question asking whether the state constitution should be amended to legalize marijuana use. There are no immediate impacts for New Jersey employers, although that may change as the legislature begins the lengthy process for creating implementing legislation.

The Upshot

  • The amendment legalizes marijuana for adults age 21 and older and provides that the Cannabis Regulatory Commission created to oversee the medical marijuana industry also will have oversight of recreational sales.

  • Unlike with medical marijuana use, New Jersey employers are not required to accommodate recreational marijuana use in or out of the workplace. However, the implementing legislation could change that.

  • New York employers who employ New Jersey residents should be aware of New York law, which does require accommodation of certain off-duty conduct of employees. And these employers may therefore need to accommodate use of recreational marijuana by their employees who live in (or even travel to) New Jersey. 

The Bottom Line

This constitutional amendment raises workplace issues for employers, and its eventual implementing legislation may raise many more. Employers should be cautious when making employment decisions involving marijuana use that is legal either where an employee lives or works.


FULL ALERT

New Jersey Governor Phil Murphy made a promise on the campaign trail to legalize marijuana in New Jersey. On Election Day, he delivered on that promise when voters overwhelmingly approved a constitutional amendment to legalize marijuana use for adults age 21 and older. 

Accommodation of Marijuana Use by New Jersey Employers

As we previously reported, the New Jersey Law Against Discrimination requires New Jersey employers to provide reasonable accommodations for an employee’s medical marijuana use. New Jersey law, however, does not require employers to accommodate recreational marijuana use. Moreover, because New Jersey does not protect an employee’s off-duty conduct, employers may take adverse action against an employee for marijuana use that is unrelated to a disability, regardless of whether the use occurs in or out of the workplace. It is important to note that employer obligations may change dramatically with the passage of implementing legislation for the recently passed constitutional amendment legalizing marijuana. New Jersey’s medical marijuana statute initially stated explicitly that it did not require employers to accommodate medical marijuana usage, but that law was amended in July of 2019 to remove that language. Based on this trend, it is possible that the implementing legislation could require accommodation of off-duty usage.

Accommodation of Marijuana Use in New Jersey by New York Employers

In addition to potential disability accommodations, some states limit an employer’s ability to take adverse action against an employee for legal off-duty conduct, which can include legal use of marijuana. For employees who work in those states, legal marijuana use in New Jersey could be protected. Of the states immediately adjacent to New Jersey, only New York has a statute generally protecting off-duty conduct. New York Labor Law Section 201-D prohibits an employer from taking adverse action against an employee based on certain off-duty conduct, including “legal use of consumable products prior to the beginning or after the conclusion of the employee's work hours.” New York employers are therefore likely to be required to accommodate legal use of recreational marijuana by their employees in New Jersey. Because many employees who work in New York reside in New Jersey, this rule may have a significant impact on New York employers.

Given the practical limitations of current medical testing, it may prove difficult for employers to address an employee’s potential impairment while on duty in states that have off-duty conduct rules. Test results may register as positive for days or even weeks after an employee has used marijuana, so testing will not clearly distinguish between current and prior impairment.

The number of employees using both medical and recreational marijuana is likely to continue to grow, leading to more requests for accommodations of marijuana use in the workplace. Unfortunately, unless and until marijuana is legalized at the federal level or state marijuana laws become more uniform, employers will face a complicated and ever-changing landscape. For now, employers should exercise caution in handling employee drug testing and requests for accommodation where marijuana could be involved, especially where marijuana use may be legal where the employees live but not where they work or vice versa. Given the constantly evolving law in this area, when presented with situations involving marijuana testing, accommodation, or discipline based on marijuana use or test results, employers should carefully evaluate the applicable statutes and decisional law of the relevant jurisdiction(s) and seek legal counsel as appropriate.

Attorneys in Ballard Spahr’s Labor and Employment Group regularly assist employers with navigating the novel and complex issues pertaining to marijuana in the workplace.


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