By Scott Miccio
Two years ago, voters went to the polls in New Jersey and overwhelmingly supported the legalization of recreational cannabis sales and use. Over two-thirds of those who voted, supported the measure. Two-thirds! These days, two out of three people can’t agree on much, like whether a hot dog is a sandwich (it is, by the way), but on this, New Jerseyans were in lockstep.
Since then, much has happened, but the industry has yet to hit its stride, and unanswered questions remain – particularly at the municipal level and regarding how employers must treat cannabis-using employees.
Municipal Considerations
Every municipality in New Jersey was required to affirmatively “opt in” or “opt out” of cannabis by August 21, 2021. In other words, every governing body was required to consider, and either permit or prohibit by ordinance, each of the six cannabis license types – (1) Cultivation; (2) Manufacturing; (3) Wholesaling; (4) Distribution; (5) Retail; and (6) Delivery Services. The municipal council meetings that ensued during that period served as an excellent example of democracy in action. With a pandemic raging, members of the public logged onto Zoom in droves to weigh in on the debate at their local public meetings. Supporters saw cannabis as a quick way to reduce their own tax burden, considering that municipalities are permitted to charge cannabis companies a local tax. And, farmers were intrigued by the possibility of having another type of crop to grow. Other advocates simply wanted a pot shop close by so that they didn’t have to a significant distance to make a purchase.
Detractors, however, feared that permitting cannabis within their towns’ borders would negatively impact the fabric of their neighborhoods, and worried that the skunky scent of cannabis would overwhelm their Main Streets. In the end, some municipalities saw the advantages of cannabis and dove in. However, most took a wait-and-see approach, mainly because the State had yet to adopt the regulations that would control the industry.
Since then, however, the Cannabis Regulatory Commission (CRC), the agency in charge of overseeing cannabis operations in New Jersey, has released some regulations, and the legal landscape has become a bit clearer. Some municipalities that opted out are reversing course and are opting in. To ensure a successful cannabis roll out, legal and planning professionals must be consulted, as there are dozens of factors to account for. For example: How many establishments should be permitted? How should the municipality review and approve cannabis businesses? Should the municipality establish its own local cannabis committee? How should the municipality tax cannabis?
There are also land use issues specific to cannabis that cannot be ignored. For example, cannabis is a water-intensive crop, and this must be addressed, particularly in water-sensitive communities. Also, cannabis seeds and pollen tend to float away, and, therefore, protections must be put in place in farming communities to ensure that neighboring crops are not infected.
Adverse Employment Actions
Since legalization, employers have wondered how to deal with employees suspected of using cannabis. The cannabis statute is very clear on one thing: “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 . . . use cannabis.” In other words, an employer can’t refuse to hire, or fire someone, simply because of a positive drug test. Beyond that, the law is unsettled.
The statute permits for an adverse employment action to be taken if someone is “high” on the job. The cannabis statute calls for the use of a Workplace Impairment Recognition Expert (WIRE) to conduct in-the-moment evaluations of those suspected of drug use. The CRC has been charged with developing regulations on how WIREs should conduct themselves, and on the training requirements to become a WIRE, but, for now, the CRC has punted on this issue, and has yet to develop the full regulations. Rather, on September 9, 2022, the CRC issued “Interim Guidance” in an effort to assist employers, but employers must tread lightly.
The Interim Guidance suggests that if an employer suspects an employee of using cannabis on the job, in addition to having the employee undergo a bodily fluid drug test, the employer must assign someone who is “sufficiently trained to determine impairment” to conduct an evaluation and to fill out a “Reasonable Suspicion Observed Behavior Report.” Again, however, there are no concrete regulations on who may conduct such evaluations. Considering that the laws in this area remain in flux, prior to firing, demoting or otherwise punishing an employee suspected of using cannabis on the job, great care must be given to the situation to try to avoid the prospect of litigation.
Notably, no employers may prohibit off-duty use of cannabis. That said, there is pending legislation that would permit employers for certain professions, such as first responders and those that use heavy machinery, from refusing to hire cannabis users. Employers should continue to track proposed changes to the evolving cannabis laws.
Conclusion
Cannabis is still new in New Jersey, and there are a lot of moving pieces. If you have any questions, reach out to the attorneys at Malamut & Associates who are here to guide you through the hazy legal landscape.
The content of this post should not be construed as legal advice. You should consult a lawyer concerning your specific situation and any specific legal question you may have.