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As New Jersey moves toward the legalization of marijuana and decriminalizing possession charges or marijuana, many employees may be wondering if they can get fired for being high at work and the truth is, the answer is complicated.
In November 2020, New Jersey lawmakers passed a historic bill to legalize marijuana for New Jersey adults. However, as of January 1, 2020, all the laws on the books outlawing marijuana possession, use, and sales are still in effect. Until Governor Murphy signs into law the approved bill, none of the employment protections outlined therein are valid.
What to look forward to…
The current bill does prohibit employers from taking adverse employment actions against employees who do or do not smoke, vape, aerosolize, or otherwise use cannabis items. However, if an employer has a rational basis for taking adverse employment action against an employee due to the use of cannabis items, it may. Employers may also subject employees to random drug testing, or test for the presence of cannabis if the responsibilities of the employee (or prospective employee) require a drug test, or if the employer has a reasonable suspicion an employee used a cannabis item while at work, or after finding observable signs of intoxication (related to the use of cannabis) or following a work-related accident that is subject to an investigation. However, there will likely be some difficulty determining whether an employee is actually high at work and whether there is reasonable suspicion warranting a drug-test.
There will certainly be issues concerning wrongful termination. Employers may hesitate to terminate an employee for their use of cannabis without being able to prove those employees were high while performing their job duties or got high once at work. On the other hand, employers may terminate employees who they feel may be engaging in criminal conduct and according to federal laws, marijuana is still illegal.
There may be a reason why Governor Murphy has not yet signed the bill into law – there are high hurdles to overcome.