Pub. 19 2020-2021 Issue 4

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S I S S U E 4 | 2 0 2 0 16 new jersey auto retailer On November 3, 2020, New Jersey voters overwhelming chose to amend the New Jersey Constitution to legalize the recreational use of cannabis by adults age 21 and older. On December 17, 2020, the State Legislature passed the proposed enabling and regulatory bill which, as of this writing, awaits Governor Murphy’s signature. While many are excited by this upcoming change, dealerships are rightfully concerned with how recreational cannabis use will affect the workplace, such as safety and productivity. Legal Status of Cannabis Although cannabis is still classified as a Schedule I drug in the federal Controlled Substance Act, New Jersey joins a growing number of states that have legalized the use of cannabis for recreational or medicinal purposes. Currently, 15 states and the District of Columbia have legalized the recreational use of can- nabis, and 35 states have legalized its use for medical purposes. While the U.S. House of Representatives recently approved leg- islation to remove cannabis from the Controlled Substance Act’s list, this bill is not expected to pass in the Republican-led senate. New Jersey’s adoption of a Constitutional amendment did not immediately allow adult recreational use of cannabis. However, the State Legislature’s enactment of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modern- ization Act legalizes the recreational use of cannabis by adults and directly affects New Jersey dealership’s drug-free workplace policies and drug testing procedures. The effective date varies according to the act’s provisions. The new law prohibits dealerships from taking an adverse employment action solely because the employee chooses to use cannabis products. However, this does not mean a dealership is prohibited from enforcing a drug-free workplace policy or mandating, under some situations, applicant and employee drug testing. The law likewise does not require a dealership to allow workplace use or possession of cannabis. Updating Employment Policies Dealerships should use this time to consider whether a drug-free workplace policy should be incorporated into their policy manu- als. Initially, dealerships must consider the employees’ category and the nature of their jobs before creating a one-size-fits-all policy. The New Jersey bill does not include express exceptions for safety-sensitive positions, so any policy must reconcile any appliable federal drug-free workplace requirements and the pro- tected activity permitted by the New Jersey law. Even if federal drug-free workplace requirements do not apply, a dealership should draft or update its policies to clarify its expectations regarding cannabis usage so that employees are on notice about the requirements and the consequences for noncompliance. High Stakes: How Will the Legalization of Recreational Marijuana in New Jersey Affect the Workplace? BY JENNIFER ROSELLE, ESQ. AND DANIEL PIERRE, ESQ.