A3870

An Act concerning recreational cannabis use and amending P.L.2021, c.16.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 48 of P.L.2021, c.16 (C.24:6I-52) is amended to read as follows:

48. Employers, Driving, Minors and Control of Property.

a. (1) [No] Except as provided in section 2 of P.L. ,c (C. ) (pending before the Legislature as this bill), an employer shall not 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 P.L.2021, c.16 (C.24:6I-31 et al.). However, an employer may require an employee to undergo a drug test upon reasonable suspicion of an employee's usage of a cannabis item while engaged in the performance of the employee's work responsibilities, or upon finding any observable signs of intoxication related to usage of a cannabis item, or following a work-related accident subject to investigation by the employer. A drug test may also be done randomly by the employer, or as part of a pre-employment screening, or regular screening of current employees to determine use during an employee's prescribed work hours. The drug test shall include scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva, and a physical evaluation in order to determine an employee's state of impairment. The physical evaluation shall be conducted by an individual with the necessary certification to opine on the employee's state of impairment, or lack thereof, related to the usage of a cannabis item in accordance with paragraph (2) of this subsection. The employer may use the results of the drug test when determining the appropriate employment action concerning the employee, including, but not limited to dismissal, suspension, demotion, or other disciplinary action.

(2) (a) In order to better ensure the protections for prospective employees and employees against refusals to hire or employ, or against being discharged or having any other adverse action taken by an employer, while simultaneously supporting the authority of employers to require employees undergo drug tests under the circumstances set forth in paragraph (1) of this subsection, as well as employer efforts to maintain a drug- and alcohol-free workplace or other drug- or alcohol workplace policy as described in paragraph (1) of subsection b. of this section, the commission, in consultation with the Police Training Commission established pursuant to section 5 of P.L.1961, c.56 (C.52:17B-70), shall prescribe standards in regulation for a Workplace Impairment Recognition Expert certification, to be issued to full- or part-time employees, or others contracted to perform services on behalf of an employer, based on education and training in detecting and identifying an employee's usage of, or impairment from, a cannabis item or other intoxicating substance, and for assisting in the investigation of workplace accidents. The commission's regulations shall also prescribe minimum curriculum courses of study for the certifications, as well as standards for the commission's approval and continuation of approval of non-profit and for-profit programs, organizations, or schools and their instructors to offer courses of study, and may include the use of a Police Training Commission approved school as that term is defined in section 2 of P.L.1961, c.56 (C.52:17B-67) if consented to by the Police Training Commission.

(b) Any person who demonstrates to the commission's satisfaction that the person has successfully completed a Drug Recognition Expert program provided by a Police Training Commission approved school, or another program or course conducted by any federal, State, or other public or private agency, the requirements of which are substantially equivalent to the requirements established by the commission pursuant to subparagraph (a) of this paragraph for a Workplace Impairment Recognition Expert certification, may, at the discretion of the commission, be issued this certification, subject to subsequent continuation of certification approval by the commission.

b. Nothing in P.L.2021, c.16 (C.24:6I-31 et al.):

(1) (a) Requires an employer to amend or repeal, or affect, restrict or preempt the rights and obligations of employers to maintain a drug- and alcohol-free workplace or require an employer to permit or accommodate the use, consumption, being under the influence, possession, transfer, display, transportation, sale, or growth of cannabis or cannabis items in the workplace, or to affect the ability of employers to have policies prohibiting use of cannabis items or intoxication by employees during work hours;

(b) If any of the provisions set forth in this paragraph or subsection a. of this section result in a provable adverse impact on an employer subject to the requirements of a federal contract, then the employer may revise their employee prohibitions consistent with federal law, rules, and regulations;

(2) Is intended to allow driving under the influence of cannabis items or driving while impaired by cannabis items or to supersede laws related to driving under the influence of marijuana or cannabis items or driving while impaired by marijuana or cannabis items;

(3) Is intended to permit the transfer of cannabis items, with or without remuneration, to a person under 21 years of age or to allow a person under 21 years of age to purchase, possess, use, transport, grow, or consume cannabis items, unless the person is under 21 years of age, but at least 18 years of age, and an employee of a cannabis establishment, distributor, or delivery service acting in the person's employment capacity;

(4) Shall, consistent with subsection c. of section 46 of P.L.2021, c.16 (C.2C:35-10a), prohibit a person or entity that owns or controls a property from prohibiting or otherwise regulating the consumption, use, display, transfer, distribution, sale, or transportation of cannabis items on or in that property, or portion thereof, including a hotel property that is a casino hotel facility as defined in section 19 of P.L.1977, c.110 (C.5:12-19), a casino as defined in section 6 of P.L.1977, c.110 (C.5:12-6), or casino simulcasting facility authorized pursuant to the "Casino Simulcasting Act," P.L.1992, c.19 (C.5:12-191 et al.), provided that a person or entity that owns or controls multifamily housing that is a multiple dwelling as defined in section 3 of P.L.1967, c.76 (C.55:13A-3), the structure or specific units of the structure of a cooperative as defined in section 3 of P.L.1987, c.381 (C.46:8D-3),a unit of a condominium as defined in section 3 of P.L.1969, c.257 (C.46:8B-3), or a site in a mobile home park as defined in section 3 of P.L.1983, c.386 (C.40:55D-102), which site is leased to the owner of a manufactured home, as defined in that section, that is installed thereon, may only prohibit or otherwise regulate the smoking, vaping, or aerosolizing, but not other consumption, of cannabis items, and further provided that municipalities may not prohibit delivery, possession, or consumption of cannabis items by a person 21 years of age or older as permitted by section 46 of P.L.2021, c.16 (C.2C:35-10a);

(5) Is intended to permit any person to possess, consume, use, display, transfer, distribute, sell, transport, or grow or manufacture cannabis or cannabis items in a school, hospital, detention facility, adult correctional facility, or youth correctional facility;

(6) Is intended to permit the smoking, vaping, or aerosolizing of cannabis items in any place that any other law prohibits the smoking of tobacco, including N.J.S.2C:33-13 and the "New Jersey Smoke-Free Air Act," P.L.2005, c.383 (C.26:3D-55 et seq.). Except as otherwise provided by P.L.2021, c.16 (C.24:6I-31 et al.), any fines or civil penalties that may be assessed for the smoking of tobacco in designated places shall be applicable to the smoking, vaping, or aerosolizing of cannabis items.

(cf: P.L.2021, c.16, s.48).

2. (New section) a. An employer shall prohibit the personal recreational use of cannabis for the following employees:

(1) any person who operates heavy machinery;

(2) any person who operates weapons;

(3) any person whose use would put the public at serious risk; and

(4) law enforcement officers.

b. All employees prohibited from recreational cannabis use pursuant to this section shall be subject to employer policies that relate to employee drug testing pursuant to subsection a. of section 48 of P.L.2021, c.16 (C.24:6I-52).

c. As used in this section:

“Heavy machinery” means heavy-duty vehicles designed for executing construction, industrial, or forestry tasks. “Heavy machinery” may include, but is not limited to, backhoes, tractors, dump trucks, front-end loaders, excavators, cranes, and bulldozes.

“Law enforcement officer” means a person whose public duties include the power to act as an officer for the detention, arrest, and conviction of offenders against the laws of this State.

“Weapons” means anything readily capable of lethal use or of inflicting serious bodily injury. The term includes, but is not limited to, firearms, tasers, and knives.

3. This act shall take effect immediately.

STATEMENT

This bill amends the Cannabis Regulatory Enforcement Assistance, and Marketplace Modernization Act, P.L.2021, c.16 (C.24:6I-31 et seq.) to prohibit certain categories of employees from the personal use of recreational cannabis. Specifically, this bill permits an employer to prohibit any use of cannabis if the person operates heavy machinery or weapons, or whose use of cannabis would put the public at risk. Further, this bill permits employers of law enforcement officers to prohibit use of cannabis.

This bill defines “heavy machinery” as heavy-duty vehicles, designed for executing construction, industrial, or forestry tasks. “Heavy machinery” may include backhoes, tractors, dump trucks, front-end loaders, excavators, cranes, and bulldozes. This bill also defines “weapons” as anything readily capable of lethal use or of inflicting serious bodily injury and includes, but is not limited to, firearms, tasers, and knives. Finally, the bill defines a “law enforcement officer” as a person whose public duties include the power to act as an officer for the detention, arrest, and conviction of offenders against the laws of this State.

All employees prohibited from recreational cannabis use pursuant to the bill’s provisions are subject to employer policies as it relates to employee drug testing.