Recreational Marijuana Bill Creates New Challenges for Public Safety Unions

The New Jersey Marijuana Legalization Amendment (S2703/A4497) amends the state constitution to legalize the recreational use of marijuana for adults age 21 and older. It also legalizes the cultivation, processing, and sale of retail cannabis. The constitutional amendment took effect on January 1, 2021

Our recent podcast on FMBA Nation with Chief State Counsel Craig Gumpel and Tom Cushane from Cushane Law Firm addresses some of the issues and challenges with the new law. According to the law, employers are unable to enforce any disciplinary actions against an employee provided they do not fall into one of the exempt categories, or provided that they are not considered to be under the influence while on the job. 

Gumpel stated “I think the law  is clear on a couple of things and that is, you can’t be high on the job, you can’t use possess or sell marijuana while you’re working. Where it becomes a little bit unclear and the law does attempt to address it, and I think it remains to be seen whether it effectively addresses it, is the issue about impairment. The law says that you can have marijuana in your system and you cannot be disciplined or have any adverse employment action against you just based solely on the fact that there is marijuana in your system.”

Under the influence, appears to be the challenge of the new legislation and states that in order for an employer to determine if an employee is considered to be under the influence, they must have a Workplace Impairment Recognization Expert, (WIRE), perform the impairment test. The issue remains to be a fluid one and there is already amendments that are being drafted to address many of the issues with the legislation. One in particular has been said to add a “safety standards” clause or exemption which should provide some clarification on public safety employees. 

Although it may appear as though at the moment that a member may be able to participate under the new law, the legal counsel of the NJ FMBA is advising members to do so at your own risk as the law is rapidly changing. Your actions now, although may seem legal, could have an adverse effect on your employment status in the very near future should the law change and should you be tested. 

The episode of the FMBA Nation Podcast can be heard wherever you listen to your podcasts. We encourage you to listen to the conversation to get some very valuable insight and analysis of this new law.