Sponsored by:
Senator PAUL A. SARLO
District 36 (Bergen and Passaic)
SYNOPSIS
Provides employer and employee protections pursuant to the use of legalized cannabis items.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning employment issues related to the use of legalized cannabis items, and amending P.L.2021, c.16 and P.L.1961, c.56.
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 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 P.L. 2021, c. 16 (C.24:6I-31 et al.) except as otherwise provided in this section. 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. A drug test for cannabis shall not be done as part of a pre-employment screening, except for the employees outlined in paragraph (1) of subsection b. of this section. The drug test shall include scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva, and may include 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.
An employer may determine to employ or not to employ a Workplace Impairment Recognition Expert in the employer s discretion. Nothing in this subsection shall be interpreted to require that an employer use a Workplace Impairment Recognition Expert for either drug testing or determinations of suspicion of an employee s usage of a cannabis item while engaged in the performance of the employee s work responsibilities nor shall the use of the Workplace Impairment Recognition Expert be deemed the industry standard for testing or making such suspicion determinations. An employer shall remain free to use scientifically reliable testing services and to exercise its own judgment in making a good faith suspicion determination.
(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] the New Jersey State Police, 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;
No employer shall take any action which has the effect of prohibiting an employee using cannabis items during non-work hours except:
(i) upon a determination by an employer that the nature of the work of an employee at a critical infrastructure facility or a construction site has an exceptionally high risk of potential harm to other employees or to public safety if the employee were to be impaired through the use of cannabis. The approval to designate categories of such employees, or a specific employee of an employer, shall be made by the commission upon application of the employer. The commission shall approve such application upon finding that the standards set forth in this subsubparagraph have been met.
As used in this subsubparagraph critical infrastructure facility means: a facility identified in the United States Department of Energy, 2015 Energy Sector-Specific (SSP) prepared in accordance with section 1016 (e) of the USA Patriot Act of 2001 (42 U.S.C. 519c(e)) or any amendment, supplement or similar plan or definition; or a facility operated by an air carrier certificated by the Federal Aviation Administration;
(ii)