Now that adult-use cannabis sales have begun in New Jersey, many municipalities and their employees are raising questions about when off-duty cannabis use is permitted. One of the most controversial issues involves off-duty cannabis use by law enforcement. While the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act protects workers who use cannabis outside the workplace, the New Jersey Legislature is working to clarify whether those protections extend to law enforcement.
Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act
The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), which legalized recreational cannabis in New Jersey for adults 21 years and older, also addresses several related employment issues, such as drug testing and legal protections for employees who use cannabis outside the workplace.
Employers are prohibited from firing or refusing to hire a person who uses cannabis on their own time. The law expressly states: “No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.” New Jersey employers are also prohibited from making an employment decision “solely” based on an arrest, charge, conviction, or adjudication of delinquency for violation of certain New Jersey laws related to manufacturing, distributing, dispensing, or possessing certain amounts of cannabis.
Employers may still prohibit cannabis in the workplace, which includes prohibiting the possession and consumption of cannabis in the workplace, as well as intoxication during work hours. Employers can also require random testing, or testing as part of a pre-employment screening, or regular screening of current employees to determine use during an employee’s prescribed work hours. Under the CREAMMA, an employer may also require an employee to undergo drug testing if:
- The employer reasonably suspects the employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities;
- There are observable signs of intoxication related to usage of a cannabis item; or
- The drug test follows a work-related accident subject to investigation by the employer.
Employers can utilize the results of any such drug test when determining the appropriate employment action concerning the employee. However, an employee drug test must meet a heightened standard, which includes a scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva, and a physical evaluation in order to determine an employee’s state of impairment.
The physical evaluation must be performed by a “Workplace Impairment Recognition Expert” (WIREs) certified by the Cannabis Regulatory Commission (CRC). However, the CRC has yet to propose rules or training for WIREs.
AG Memo Regarding Off-Duty Use by Law Enforcement
On April 13, 2022, Acting Attorney General Matt Platkin issued a memo to law enforcement chief executives regarding New Jersey police officers’ participation in the new adult-use cannabis market. In his memo, Platkin stated that CREAMMA prohibits law enforcement agencies from taking adverse actions against officers for using cannabis off-duty.
The Attorney General’s memo makes it clear that on-duty use remains cause for disciplinary action, including termination. “To be clear, there should be zero tolerance for cannabis use, possession, or intoxication while performing the duties of a law enforcement officer,” Platkin wrote. “And there should be zero tolerance for unregulated marijuana consumption by officers at any time, on or off duty, while employed in this state. The safety of our communities and our officers demands no less.”
The memo further explained that if there is reasonable suspicion of cannabis use during the performance of their duties or signs of intoxication related to cannabis use following a work-related accident, the officer may be required to undergo a drug test. CREAMMA mandates that the drug test include scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva, and a physical evaluation in order to determine the officer’s state of impairment.
Proposed Legislation to Ban Off-Duty Cannabis Use
Following his memo, Acting Attorney General Platkin came under fire by critics who argue that police officers should not be allowed to consume cannabis even while off-duty. Platkin did not disagree, but maintained that his memo simply reiterated CREAMMA’s provisions, which lawmakers could clarify through legislation.
“I would urge you to consider, in your role as legislators, whether to amend the law to clearly allow law enforcement agencies to proscribe the off-duty use of regulated cannabis by those upon whom we rely to keep us safe and to whom we entrust the use of firearms,” Platkin wrote in a letter to legislators.
On May 2, 2022, Assembly Bill 3914 was introduced, which would permit law enforcement agencies to prohibit recreational use of cannabis items by law enforcement officers. The legislation specifically provides that a law enforcement agency may discharge from employment or take any adverse action against a law enforcement officer with respect to compensation, terms, conditions, or other privileges of employment or appointment if that officer uses cannabis items pursuant to the recreational use statute. Additionally, Assembly Bill 3914 provides that a law enforcement officer may be subject to adverse action by an employer or appointing authority solely due to the presence of cannabinoid metabolites in the law enforcement officer’s bodily fluid.
Under the bill, a law enforcement agency or appointing authority may conduct random drug tests of law enforcement officers. The drug test is required to include testing methods and procedures as determined by the Attorney General. Additionally, a law enforcement agency may refuse to hire and an appointing authority may refuse to appoint a prospective law enforcement officer due to use of cannabis items, as permitted under the recreational use statute, and may employ the use of drug testing as part of pre-employment screening.
Assembly Bill 3914 defines a “law enforcement officer” as a person employed as a full or part-time member of a law enforcement agency who is statutorily empowered to act for the detection, investigation, arrest, conviction, detention, or rehabilitation of persons violating the criminal laws of New Jersey. The term additionally includes special law enforcement officers of all classes, constables, auxiliary police, and humane law enforcement officers. “Law enforcement agency” is defined as a department, division, bureau, commission, board, or other authority of the State or of any political subdivision thereof which employs law enforcement officers.
While recreational cannabis is now legal in New Jersey, it will take time for the regulatory structure to mature. For more information about New Jersey’s cannabis laws or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group at 201-896-4100.