NJ Legalizes Pot – Now What?

By Aleksandra Syniec, Staff Writer

“Let me get to the point. Let’s roll another joint.”

Tom Petty & The Heartbreakers – You Don’t Know How It Feels (1994)

This election had everyone on pins and needles as we awaited the final results of the Presidential Election of 2020. But as of election night we knew one thing for certain  – New Jersey voted to legalize marijuana for recreational use. The New Jersey Public Question 1, or the Marijuana Legalization Amendment, appeared on the ballot this time around. A vote for yes meant support for this constitutional amendment to legalize the possession and use of marijuana for persons aged 21 and older and to legalize the cultivation, processing, and sale of retail marijuana. 67.02% of New Jersians voted yes. The marijuana constitutional amendment will take effect on January 1, 2021.

Across the country, many states had a similar marijuana question on their ballots. New Jersey was joined by Arizona, Montana, and South Dakota which all legalized the recreational use of marijuana. In total, there are now 15 states that have voted to decriminalize the use and sale of marijuana.

So what now?

New Jersey legislators are now tasked with creating rules for a new system of marijuana in the state. On November 6, Senator Scutari introduced legislation S21/A21, meant to provide the framework for marijuana cultivation and sale. On that same Friday, Governor Murphy appointed two individuals to a commission that will oversee the new marijuana industry in NJ; this commission will be known as the Cannabis Regulatory Commission—in addition to overseeing the new legal marijuana industry it will also oversee the existing medical marijuana program that has nearly 100,000 patients.

Who will be selling?

S21/A21 will not limit the number of licenses the commission can issue for the sale of marijuana—and this license can be applied to a wide range of business types like wholesalers and retailers. The lawmakers have made an effort to expand the number of licenses given since under the previous medical marijuana framework, only 12 companies were able to operate in NJ. Now, the hope is that the bill will benefit those who have been harmed by marijuana prohibition and the war on drugs by diversifying ownership in the medical marijuana industry as a crucial step towards justice. Such efforts are found in the bill that required 15% of licenses be reserved for racial minorities and another 15% for women and veterans and about 25% of the industry must be made up of business with 10 or fewer employees.

Where do the profits go?

The licensing fees, penalties for not following regulations, and state tax revenue from marijuana sales would all go to the operational costs of the Cannabis Regulatory Commission; reimbursement of local police departments to train officers to serve as Drug Recognition Experts; and any residuary going to NJ’s general fund.

Who can tax?

The state tax marijuana products will be a 6.625% sales tax.

Each individual municipality would be able to enact their own additional 2% tax under the bill which could be applied to transactions between growers, customers, wholesalers, and retailers.

What about before January 1, 2021?

In addition to S21/A21 that speaks to marijuana sale regulation. S2535 has also been reintroduced as a decriminalization bill. This bill was originally introduced in June 2019 and now makes a resurfacing to address the current situation. S2535 would decriminalize someone possession of up to 6 ounces of marijuana and the distribution of one ounce. Without this bill being passed, you could still be arrested between now and the passage of the sales regulation law. Also, without a decriminalization provision, only individuals 21 and over would be legally allowed to use marijuana, while younger people could still face arrest.

Since the ballot vote, police continue arrests. Attorney General Grewal did issue a statement calling on police and prosecutors to use their discretion when dealing with marijuana related offenses but did not issue an order to cease or reduce.

How will this affect the workplace?

To determine who the legalization of marijuana will affect in the workplace, we can look to already existing legislation for medical marijuana. Following the Compassionate Use Medical Cannabis Act, employers can prohibit the use of marijuana at the workplace, even if they are lawfully registered medical users. However, an employer cannot take adverse employment action for someone who used medical marijuana in their personal life; it can take adverse action against someone who possesses or uses marijuana in the workplace. Employers should keep an eye out for more legislation from the state on disciplinary actions while keeping in mind these current limitations.

What about drug testing?

The difficulty with testing for marijuana use is that remnants of the drugs may be found in one’s urine, hair, or blood days after usage. There are current efforts to make cannabis breathalyzers however without any further technology it may be difficult to get an accurate result. There are also important privacy considerations for different types of drug tests and what they may reveal about an individual. Currently, the use of random drug testing is limited to only positions which have safety sensitive contexts.

Testing for other reasons must be based on an employer’s reasonable suspicion of impairment. When crafting drug testing policies, employers should be conscious of the federal and state privacy guidelines like these.

Further, the New Jersey Law Against Discrimination (NJLAD) has a special carve-out for medical marijuana users that allows someone who has been terminated or reprimanded for medical marijuana use to challenge the employer’s decision—meaning that an adverse action against a medical marijuana user may lead to a discrimination suit against the employer.

It is important to mention that NJ legislators have not yet defined the protections for non-medical marijuana users, however the underlying framework for NJLAD discrimination suits is that it is meant to protect legal users from adverse employment actions.

Before the new year, employers should consider the implications of marijuana use and how they are going to approach policies and employee guidelines moving forward with some of the above in mind.

Aleksandra Syniec is a regular contributor to our Blog section. She is a third-year law student at Seton Hall University School of Law and beyond her skill researching and writing about different legal issues, is also knowledgeable in landlord-tenant law and  information technology.