On April 13, 2022, the Attorney General issued a memorandum to law enforcement agencies authorizing off-duty cannabis use under the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act. Given the sudden and extreme departure from the norm, the memorandum was met with a broad variety of reactions. Some expressed support, whereas others criticized and opposed the memorandum. Common to both sides, however, were feelings of surprise and confusion – the biggest question appearing to be how law enforcement agencies can distinguish between lawful off-duty use and illegal on-duty use.
The purpose of this article is to provide guidance to law enforcement agencies and employees with respect to off-duty cannabis usage. This article will discuss the important provisions of the CREAMMA and Attorney General memorandum (and its potential issues), followed by guidance to employers and employees with respect to their obligations under governing employment laws.
The Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act
On November 3, 2020, New Jersey voters approved a public question authorizing a constitutional amendment for the legalization of cannabis. To reflect the will of the voters, the Legislature enacted the Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act (“CREAMMA”) on February 22, 2021. This landmark legislation, among other things, decriminalized marijuana, created the Cannabis Regulatory Commission, set forth procedures for introducing recreational cannabis into the marketplace, and established a variety of rights and protections for employees who engage in recreational cannabis use.
In the employment context, the most significant aspect of the CREAMMA is its broad anti-discrimination provision prohibiting employers from taking adverse employment action against employees on account of off-duty marijuana use:
No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid from engaging in conduct permitted under [the CREAMMA].
There are two key exceptions to the general anti-discrimination provision above. First, an employer is permitted to discipline employees on account of cannabis use to the extent necessary to maintain federal contracts or secure federal funding. Second, an employer remains permitted to maintain a drug-free work environment.
This second exception has generated a great deal of confusion. Many are wondering, for instance, how an employer can maintain a drug-free workplace if it cannot discipline its employees based solely on a positive drug test. The CREAMMA provides the following answer:
- An employer may discipline an employee where the results of a “drug test” indicate on-duty cannabis use.
- For purposes of the CREAMMA, a “drug test” includes two components -
- First, it includes scientifically reliable objective testing methods and procedures, such as the testing of blood, urine, or saliva.
- Second, it includes a physical evaluation conducted by an individual with a Workplace Impairment Recognition Expert certification (“WIRE”) to opine on the employee’s state of impairment.
The physical evaluation component is critical. Under the CREAMMA, the physical evaluation must take place prior to an employee being disciplined on account of on-duty cannabis use. It must also be administered by an individual who has the WIRE certification.
The CREAMMA provides that the WIRE certification is to be developed by the Cannabis Regulatory Commission and Police Training Commission. Once created, employers can have their full or part-time employees obtain this certification in order to administer the physical evaluation. Alternatively, employers can contract with outside individuals for WIRE services.
The intent of this two-step drug testing procedure is to ensure that employee discipline is limited to instances where it can be shown that an employee was under the influence of cannabis while on duty or on the employer’s premises. However, the issue is that the WIRE certification has yet to be created. Recognizing that, the Cannabis Regulatory Commission issued regulations staying the requirement that an employee be physically examined:
Notwithstanding the provisions of N.J.S.A. 24:6I-52, until such time that the Commission, in consultation with the Police Training Commission, established pursuant to N.J.S.A. 52:17B-70, develops standards for a Workplace Impairment Recognition Expert certification, no physical evaluation of an employee being drug tested in accordance with N.J.S.A. 24:6I-52 shall be required.
Thus, for the time being, employers may continue to discipline employees who test positive for the presence of cannabis, without the physical evaluation, until such a time that the WIRE certification is established. At that point, the physical evaluation component becomes mandatory.
With this background, we turn to the Attorney General memorandum.
Attorney General Memorandum – CREAMMA Compliance
The Attorney General’s memorandum to law enforcement authorizes the off-duty use of cannabis and addresses the various provisions of the CREAMMA discussed above. The memorandum acknowledges the CREAMMA’s anti-discrimination provision and the procedures necessary for “drug testing” prior to the imposition of discipline based upon on-duty cannabis use, including the physical evaluation component.
In response, several GOP Senators sent a letter to the Acting Attorney General raising a variety of issues. “The memorandum fails to mention that marijuana users are federally prohibited from purchasing or possessing firearms, an omission that may put officers unknowingly at risk of criminal prosecution, or that the legitimacy of DRE evidence is currently being questioned by the New Jersey Supreme Court.”
Indeed, while the memorandum acknowledges that the physical evaluation is required, it fails to provide any specifics regarding its administration. It is worth noting that an individual who qualifies as a Drug Recognition Expert (“DRE”) is eligible to receive the WIRE certification, once established. However, as discussed in the Senators’ letter, the reliability of DRE evidence is currently being challenged before the New Jersey Supreme Court. Moreover, a DRE does not automatically become a WIRE, which is necessary for the CREAMMA physical evaluation.
Moving on, a related issue involves the interaction between the authority of the Legislature, Cannabis Regulatory Commission, and Attorney General to establish standards pertaining to lawful cannabis usage and adverse employment action. The Legislature has broadly mandated that employees cannot be disciplined for the presence of cannabis metabolites unless a “drug test” indicates that the employee was impaired while on duty. To carry out the goals of the CREAMMA, the Cannabis Regulatory Commission was created to “oversee the development, regulation, and enforcement of activities associated with the personal use of cannabis pursuant to [the CREAMMA.]” In accordance with that grant of power, the Commission has issued regulations staying the physical evaluation component until the WIRE certification is established.
By contrast, the Attorney General memorandum states that a physical evaluation must take place prior to the imposition of discipline. In other words, the Attorney General established a standard higher than that presently set by the Cannabis Regulatory Commission. In doing so, the memorandum goes against the express delegation of authority by the Legislature to the Cannabis Regulatory Commission to implement and administer the CREAMMA, which includes its anti-discrimination and drug testing procedures.
This is a rapidly developing area of employment law and we anticipate additional guidance from the respective agencies will be soon to follow. Nonetheless, we provide the following advice to law enforcement agencies and employees regarding the Attorney General’s memorandum:
Advice to Employers
Consult with labor counsel and take a position on the legality/enforceability of the Attorney General’s memorandum. Afterwards, adopt a policy and advise law enforcement employees as soon as practicable to ensure clarity throughout the department. Some departments, such as Jersey City, have already issued directives stating that off-duty cannabis use will not be permitted. For departments who decline to comply with the Attorney General memorandum, we emphasize that this policy should be communicated as soon as possible.
For law enforcement agencies who choose to comply with the Attorney General’s memorandum, we note that the state of the physical evaluation component is unclear as it is based on a legal framework that has yet to be completed. For best practices in complying with the memorandum, and notwithstanding the challenges to DRE evidence currently pending before the New Jersey Supreme Court, we recommend prioritizing DREs to administer the physical evaluation. Depending on DRE availability, we further recommend coordinating with other law enforcement agencies for DRE services. If unavailable, agencies should utilize the next best-qualified individuals, such as those with the ARIDE or similar qualification. As always, ensure that any and all observable signs of on-duty cannabis impairment are thoroughly documented.
Advice to Employees
On April 19, 2022, the PBA issued a memorandum that encompasses many of the issues raised in this article and in the Senators’ letter. The PBA memorandum notes that “many components of [the CREAMMA] are not yet in place” and urges members to await further guidance before engaging in off-duty cannabis use.
We would advise law enforcement employees to follow the advice provided in the PBA memorandum and refrain from off-duty cannabis use pending further guidance. Inevitably, a law enforcement agency who has declined to adhere to the Attorney General memorandum will discipline a law enforcement officer after he or she tests positive for cannabis, regardless of any indication that the officer was impaired while on duty. The department will seek termination and the matter will proceed through the appropriate channels. The officer will argue that he or she was wrongfully disciplined for engaging in lawful, off-duty conduct pursuant to Attorney General authorization. The employer will counter by arguing the several points listed in this article and in the Senators’ letter.
Given the public importance of the issue, it is highly possible that the matter could be litigated all the way up to the New Jersey Supreme Court. The point being, however, is that no one wants to be the test subject.
While this is a developing area of law, this article is intended to provide an overview of current employment law and strategies that seek to err on the side of caution for both law enforcement agencies and employees.
If you have questions, please contact us
If you have any questions, please feel free to reach out to me, Lawrence Teijido, or a member of our Labor & Employment practice group, at 201-896-4100.