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  • 03/15/2019

    The New Jersey Assembly and Governor Murphy Reached A Deal To Pass Adult Recreational Use Marijuana Legislation Later This Month

    Client Alert

    Written by: Susan L. Swatski, Esq.

    On March 12, 2019, Governor Murphy and the leaders of the New Jersey State Assembly announced a deal to accept legislation to legalize adult use marijuana. Senate Bill 2703, which is expected to pass the Senate Committee on March 18, 2019 and the full Senate and Assembly on March 25, 2019, will: (1) legalize personal use of no more than one ounce of marijuana for adults aged 21 years or older; (2) create a Cannabis Regulatory Commission to regulate personal use and medical cannabis; (3) provide expungement relief for certain past marijuana offenses; (4) permit cannabis delivery services and allow dispensaries to create “consumption areas” for use on premises; and, (5) bar employers from considering marijuana use in hiring and firing decisions. The Bill allows employers to only consider marijuana use as a condition of employment if the employer “has a rational basis for doing so which is reasonably related to employment, including the responsibilities of the employee or prospective employee.”  Although employers will still be able to drug test new hires, we recommend against asking whether new hires have a medical marijuana prescription card because if employment is not obtained, the employer could be subjected to a potential claim for medical discrimination.

    Marijuana drug tests cannot determine whether someone is currently under the influence. Significantly missing from the Bill is a definition of “acute intoxication.” Absent a definition, New Jersey Supreme Court precedent controls which gives broad discretion to law enforcement and employers to determine marijuana intoxication in the absence of scientific-based proof.  Employers may still require sobriety at work and treat marijuana as they would alcohol or prescription drugs, including prohibiting the use of marijuana at work. The new law will not impact an employer’s right to refuse to accommodate the use of medical marijuana at work even where the employee has a valid medical marijuana prescription.

    All marijuana use is still illegal under federal law.  Marijuana is listed as a Schedule I drug under the Controlled Substances Act, which means that it is deemed to have no medical value and a high potential for abuse. Former President Barack Obama issued a memo in 2013 stating that federal prosecutors would not target adults who were growing or using marijuana in accordance with state laws. President Donald Trump rescinded the Obama-era memo, but has not ramped up enforcement. New Jersey employees whose jobs are subject to federal law and regulation will still be barred from using cannabis in or out of work regardless of their medical marijuana status. 

    As medical and non-medical legalization spreads, it is increasingly important that employers clarify their policies. If you have any questions regarding whether your current policies comply with the soon to be new law, please contact Susan L. Swatski, Esq. at sswatski@hillwallack.com.

    ©2019 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.