Quick Hits
- New Jersey Senate Bill S4685 prohibits law enforcement officers, first responders, CDL drivers, or persons who operate heavy equipment from engaging in the recreational use of cannabis.
- If enacted as proposed, the bill would allow employers to take adverse action against such employees or applicants who use cannabis recreationally, and to conduct random drug tests to enforce compliance.
- S4685 remains pending before the New Jersey Legislature. If enacted, the bill would take effect immediately.
Background
On February 22, 2021, New Jersey’s then-governor, Phil Murphy, signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), legalizing the recreational use of marijuana for adults age twenty-one and older. CREAMMA prohibits employers from requiring an employee to abstain from recreational cannabis usage while off duty. Nevertheless, employers may still require employees to undergo a drug test based on a reasonable suspicion of an employee’s use of cannabis, upon finding observable signs of intoxication, after a work-related accident, for pre-employment or regular screening, and randomly for safety-sensitive positions.
The Proposed Changes
The proposed bill would both supplement and amend CREAMMA and related laws to prohibit any law enforcement officer, first responder, CDL driver, or employee who operates heavy equipment from using cannabis at any time during the course of their employment, whether on or off duty or otherwise engaged in work responsibilities. Thus, the proposed bill seeks to carve out from CREAMMA’s protections employees engaged in safety-sensitive positions as follows.
Who is covered:
- Law enforcement officers: permanent, full-time members of state, county, and municipal agencies;
- First responders: a law enforcement officer; paid firefighter; paid member of a duly incorporated first aid, emergency, ambulance, or rescue squad association; paid emergency medical technician; paid paramedic; or paid 9-1-1 first responder dispatcher;
- CDL drivers: a person who has been issued a commercial driver’s license and is employed to drive a commercial motor vehicle; and
- Operators of heavy equipment: machinery weighing 5,000 pounds or more, or a vehicle that requires a CDL.
Additionally, the proposed bill would allow employers of such employees to ensure compliance by (1) discharging or taking any punitive action against the employee for engaging in the use of cannabis; (2) conducting random drug tests using scientifically reliable objective testing methods (e.g. testing of blood, urine, or saliva); and (3) refusing to hire a prospective employee for these positions due to their use of cannabis.
According to the proposed bill, evidence of a covered employee’s prohibited use of cannabis could be established simply by the presence of cannabinoid metabolites in the employee’s bodily fluid, even if the same resulted from engaging in otherwise legal, recreational use outside of work.
S4685’s ban applies to cannabis use “as otherwise permitted under the recreational use statute.” The Jake Honig Compassionate Use Medical Cannabis Act, passed in 2019, separately protects registered medical cannabis patients. It is unclear whether the proposed bill applies to employees who are registered medical cannabis patients pursuant to the Honig Act.
Next Steps
The proposed bill has been introduced and remains under consideration.
Employers in New Jersey that employ law enforcement officers, first responders, CDL drivers, or operators of heavy equipment may wish to identify the covered roles and review their drug testing and drug-free workplace policies.
Ogletree Deakins’ Morristown office and Drug Testing Practice Group will continue to monitor developments and will provide updates on the Drug Testing, New Jersey, and Trucking and Logistics blogs as additional information becomes available.
Additional information on state and federal marijuana laws, as well as drug testing requirements, is available on the Ogletree Deakins Client Portal. As new laws are enacted, the Client Portal will provide updates on the New Jersey Medical Marijuana Law Summary, the New Jersey Recreational Marijuana Law Summary, the New Jersey Drug Testing Marijuana Law Summary, and the New Jersey Lawful Off-Duty Conduct Law Summary. Template policies and full law summaries are available for Premium and Advanced subscribers. Snapshots and updates are available for all registered client users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.
Michael J. Riccobono is a shareholder in Ogletree Deakins’ Morristown office.
Jessica L. Shinski, a 2026 graduate of the Seton Hall University School of Law, currently awaiting admission to the State Bar of New Jersey, contributed to this article.
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