By: Eva Zelson
On: December 28, 2020
New Jersey has recently joined the list of states to legalize the use of marijuana. Though the law has not taken effect yet, there will undoubtedly still be limits to its use, particularly in the workplace. At Zeff Law Firm, LLC, we are closely monitoring the legalization of marijuana in New Jersey and analyzing how it will affect New Jersey workers and employment law. In this article, we discuss what we know so far.
When does the New Law Regarding Marijuana Take Effect in New Jersey?
In November 2020, the New Jersey Senate approved marijuana decriminalization. This will effectively eliminate all criminal and civil penalties for possession of up to six ounces of marijuana following voter approval of a referendum to legalize marijuana on Election Day. The new law will come into effect on January 1, 2021. However, New Jersey officials are still constructing the parameters of the new law, especially focusing on the regulation concerning the consumption of marijuana products during the workday.
Do New Jersey Employers Have to Accommodate Recreational Marijuana Use?
Although the new law permits recreational marijuana use, it currently does not require employers to accommodate recreational marijuana use. It is important to note that, as of 2019, New Jersey employers are required to provide employees reasonable accommodations for medical marijuana use. However, if the employee is not a registered medical marijuana user, they may be subject to reprimand for using marijuana at the workplace. This logic is comparable to employment actions related to drinking and alcohol consumption that we are more familiar with. Although consuming alcohol recreationally is completely legal for individuals over the age of 21 in New Jersey, it is generally considered valid for legal termination of an individual’s employment if they drink while on the job or show up to work intoxicated.
Can Employers Take Action Against Employees for Non-Medical Marijuana Usage When it Occurs Off Duty?
New Jersey does not protect an employee’s off-duty conduct. Consequently, it is legal for an employer to take adverse action against an employee for recreational marijuana use, even if the conduct occurs outside of the individual’s working hours. Since New Jersey’s marijuana legalization law is new, it is still unclear how New Jersey employers will be able to respond to employees who test positive for marijuana in, for example, routine drug tests held by employers. Other states that have legalized marijuana, such as Colorado, have concluded that employees can be fired by their employers for off-duty marijuana use, even though such recreational use is perfectly legal.
New Jersey may respond differently than Colorado. However, given New Jersey’s general lack of protection for off-duty conduct, it may be safe to assume that such retaliatory measures will be deemed legal. The alcohol analogy may help explain this. If an individual repeatedly shows up to work with a hangover or consistently misses work due to illness related to alcohol consumption, they may be subject to a negative employment action. Thus, even though the drinking took place while the employee is off duty, if the action is affecting an individual’s work or is violating a company policy, they may still be subject to an adverse employment action.
What Kinds of Issues Does this Change in the Law Raise for Employers?
For employers, one of the main concerns with marijuana legalization is ensuring that individuals do not let consumption of marijuana affect work output. In some cases, there may be safety issues. For example, if employees are required to operate dangerous machinery, they must be in a clear state of mind, and marijuana consumption affects this. Therefore, employers must now find a way to balance the legalization of the drug with ensuring that the work environment and safety of other employees is not compromised. They must also be sure to avoid discrimination against individuals who use marijuana for medicinal purposes. Employers will have to be sure to establish clear policies related to marijuana use and properly communicate those expectations with all employees over the next few weeks as the legalization of marijuana in New Jersey goes into effect. If you need advice from an employment attorney, contact Zeff Law Firm.
What do Anti-Discrimination Laws have to do with Marijuana Use in New Jersey?
In New Jersey, an employer cannot discriminate against an employee based on their illness or disability. In other words, an employer cannot foreclose employment opportunities, such as granting an individual a raise, a promotion or take retaliatory actions against an employee, simply because the individual suffers from an illness or a disability. Since marijuana products can be used to treat an illness or disability, an employer cannot discriminate against employees merely because they are a medical marijuana user. Such discrimination would violate the prohibition against unequal treatment of employees with illnesses or disabilities.