Perhaps someone’s just asking — for a friend: Now that New Jersey has legalized recreational marijuana, can your boss still fire you for smoking weed?
Answer: It’s complicated.
Under the New Jersey marijuana legalization laws enacted last month, employers can no longer fire employees simply because they use marijuana.
With few exceptions, this protection generally applies so long as the employee is on their own time, according to the law.
Not so clear is when these provisions actually take effect, and how they apply to workers bound by other laws, contracts and agreements.
Employment lawyer Michael Riccobono said the protection falls away when the worker is on the clock or on the employer’s property.
“The law is clear that employers can still prohibit the employees from the use, possession and being under the influence of marijuana at the workplace,” said Riccobono, with the Ogletree Deakins law firm in Morristown.
He added: “But marijuana users in New Jersey are essentially a protected class. You can’t fire someone solely because they are a marijuana user.”
It still isn’t clear when the marijuana laws’ provisions over employees’ use become “operative.”
Story continues below the gallery.
As written, the employment provisions in the marijuana laws “take effect immediately” but “do not become operative” until the Cannabis Regulatory Commission sets forthcoming rules and regulations, a process that could take months.
It’s left employers completely baffled, Riccobono said.
“It’s unclear how part of a statute can take effect but not become operative,” he said. “What this exactly means is something employers are struggling with.”
Riccobono has counseled clients that they can no longer prohibit someone from using marijuana off-the-clock, but can still take action if they’re intoxicated in the workplace.
But it become more of a gray area when a drug test is involved, as a positive drug test for marijuana alone will no longer be enough to take action, Riccobono said.
Under the legal weed laws, employers can still order drug tests as part of the job application process, in the aftermath of a workplace accident or if they have reasonable suspicion an employee is intoxicated while on the job.
But in order for an employer to take action based on a positive marijuana test, the employee must also be examined by a Workplace Impairment Recognition Expert, or WIRE, who will determine if the employee is actually intoxicated.
Story continues below video.
While a breath test can provide real-time results to the amount of alcohol in a person’s blood stream, no such technology has been widely accepted for marijuana use. The same issue is confronting police departments, which rely on officers trained as Drug Recognition Experts to determine whether a motorist is driving under the influence of drugs such as marijuana.
But there are still questions surrounding the WIRE program, Riccobono said: Do they get involved before or after the drug test? What kind of exam should they perform?
“This is something employers are going to have to grapple with. They’re looking to those regulations coming out,” Riccobono said.
Under the laws, the only scenario under which New Jersey workers can be prevented from getting high off the clock is if their job is governed by federal regulations, such as a commercial driver’s license holder or someone who works for the federal government itself — which still considers marijuana a Schedule I drug, with no medicinal value.
Employers who hold federal contracts could also institute such a policy if they hold federal contracts that could be at risk due to the state’s marijuana laws.
It’s also important to note that the marijuana legalization laws could change in the coming weeks, months and even years.
Sen. Paul Sarlo, D-Bergen, introduced a bill Friday that would set different “safety standards” for industries like health care, law enforcement, child care, and for employees who operate heavy machinery or equipment.
“Now that recreational marijuana use has been legalized we need to take additional steps to protect both employees and employers in jobs where safety standards are needed,” said Sarlo, who works in the construction industry and advocated for more clear employment provisions in the marijuana legalization laws. “There are state and federal rules for regulated industries and professions that need to be brought into conformance with marijuana legalization so that workers and others aren’t put at risk.”
He added: “Marijuana may be legal, but it’s not safe for certain workers to be under the influence while on the job. There should be no confusion about workers’ rights and employer responsibilities to protect workplace safety.”
Mike Davis has spent the last decade covering New Jersey local news, marijuana legalization, transportation and basically whatever else is going on at any given moment. Contact him at firstname.lastname@example.org or @byMikeDavis on Twitter.