[The following is an edited version of a story authored by Jennifer Roselle, Esq. and Daniel Pierre, Esq., of Genova Burns LLC. A more detailed version of this story will be published in the next issue of New Jersey Auto Retailer magazine.]
On November 3, 2020, New Jersey voters approved an amendment to the New Jersey Constitution legalizing the recreational use of marijuana, also known as cannabis. On December 17, 2020, the State Legislature passed a bill, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, that lays out a regulatory framework for legalization and now awaits Governor Murphy’s signature. Many businesses, including dealerships, are concerned about how the recreational use of marijuana will affect workplace safety and productivity, as well as its impact on drug-free workplace policies and drug testing procedures.
While the new law legalizes the recreational use of marijuana, it does NOT prohibit a dealership from enforcing a drug-free workplace policy or mandating, under some situations, drug testing of applicants or employees.
Dealerships must consider the category of employees, and the nature of their jobs, before creating a one-size-fits all drug policy. At a minimum, dealerships should draft or update their policies to clarify expectations regarding the use of marijuana and the consequences for non-compliance.
The new law gives dealerships discretion to conduct employee drug tests under certain circumstances. For example, the bill allows drug testing based on a reasonable suspicion that an employee is under the influence of marijuana on the job. The bill requires use of a test that is scientifically reliable. Current methods of testing (urinalysis, blood sampling, saliva), detect prior use of marijuana, which could have been weeks earlier, and don’t necessarily measure current impairment. New tests are being developed to test current impairment. There is an added wrinkle for unionized dealerships who may need to negotiate testing procedures to avoid violating labor laws or prior agreements.
The law also requires that a physical examination be conducted by a qualified individual with Workplace Impairment Recognition Expert certification. By requiring this certification, the bill aims to protect employees and applicants, but still give dealerships flexibility not to hire an impaired applicant, or to discipline an impaired employee, under defined circumstances.
Dealerships must be mindful of their obligations to individuals with disabilities who use medical marijuana. Disciplining an employee solely for testing positive for cannabis may expose the employer to liability under the New Jersey Law Against Discrimination (NJLAD). A recent New Jersey Supreme Court case, Wild v. Carriage Funeral Holdings, shows what’s at stake if a dealership fails to accommodate an individual’s non-workplace use of marijuana for medicinal purposes.
The New Jersey Supreme Court, earlier this year, clarified there is no requirement to permit an employee to operate a vehicle or heavy machinery when the employee is under the influence of cannabis. It also found that an employee’s use of medical marijuana is authorized by law, and is protected under the NJLAD if used away from the workplace. Prior to disciplining an employee who tests positive for marijuana use, employers should first confirm whether the employee has a legitimate medical explanation.
Dealerships should consult with their attorneys about updating and modernizing their workplace drug policies.