SENATE, No. 3525

STATE OF NEW JERSEY

219th LEGISLATURE

 

INTRODUCED MARCH 9, 2021

 


 

Sponsored by:

Senator  PAUL A. SARLO

District 36 (Bergen and Passaic)

Senator  STEVEN V. OROHO

District 24 (Morris, Sussex and Warren)

 

Co-Sponsored by:

Senators Addiego, Singleton, Stack, Lagana and Rice

 

 

 

 

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)   when the nature of the work of an employee is operating, maintaining, constructing or repairing a public utility that is subject to the jurisdiction of the Board of Public Utilities;

     (iii)  when such actions are required under the federal Omnibus Transportation Employee Testing Act of 1991, 49 U.S.C. s. 5331;

     (iv)  when the employer is subject to the Railway Labor Act, 45 U.S.C. § 151 et seq.; or

     (v)   when the employee is a law enforcement officer and the duties of the employment require the possession of a firearm.        

     (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.    Section 6 of P.L.1961, c.56 (C.52:17B-71) is amended to read as follows:

     6.    The commission is vested with the power, responsibility and duty:

     a.     To prescribe standards for the approval and continuation of approval of schools at which police training courses authorized by this act and in-service police training courses shall be conducted, including but not limited to currently existing regional, county, municipal, and police chief association police training schools or at which basic training courses and in-service training courses shall be conducted for State and county juvenile and adult correctional police officers and juvenile detention officers;

     b.    To approve and issue certificates of approval to these schools, to inspect the schools from time to time, and to revoke any approval or certificate issued to the schools;

     c.     To prescribe the curriculum, the minimum courses of study, attendance requirements, equipment and facilities, and standards of operation for these schools.  Courses of study in crime prevention may be recommended to the Police Training Commission by the Crime Prevention Advisory Committee, established by section 2 of P.L.1985, c.1 (C.52:17B-77.1).  The Police Training Commission may prescribe psychological and psychiatric examinations for police recruits while in the schools;

     d.    To prescribe minimum qualifications for instructors at these schools and to certify, as qualified, instructors for approved police training schools and to issue appropriate certificates to the instructors;

     e.     To certify police officers, correctional police officers, juvenile correctional police officers, and juvenile detention officers who have satisfactorily completed training programs and to issue appropriate certificates to the police officers, correctional police officers, juvenile correctional police officers, and juvenile detention officers;

     f.     To advise and consent in the appointment of an administrator of police services by the Attorney General pursuant to section 8 of P.L.1961, c.56 (C.52:17B-73);

     g.    (Deleted by amendment, P.L.1985, c.491 )

     h.    To make rules and regulations as may be reasonably necessary or appropriate to accomplish the purposes and objectives of this act;

     i.     To make a continuous study of police training methods and training methods for correctional police officers, juvenile correctional police officers, and juvenile detention officers and to consult and accept the cooperation of any recognized federal or State law enforcement agency or educational institution;

     j.     To consult and cooperate with universities, colleges, and institutes in the State for the development of specialized courses of study for police officers in police science and police administration;

     k.    To consult and cooperate with other departments and agencies of the State concerned with police training or the training of correctional police officers, juvenile correctional police officers, and juvenile detention officers;

     l.     To participate in unified programs and projects relating to police training and the training of correctional police officers, juvenile correctional police officers, and juvenile detention officers sponsored by any federal, State, or other public or private agency;

     m.   To perform other acts as may be necessary or appropriate to carry out its functions and duties as set forth in this act;

     n.    To extend the time limit for satisfactory completion of police training programs or programs for the training of correctional police officers, juvenile correctional police officers, and juvenile detention officers upon a finding that health, extraordinary workload, or other factors have, singly or in combination, effected a delay in the satisfactory completion of the training program;

     o.    (1)  To furnish approved schools, for inclusion in their regular police training courses and curriculum, with information concerning the advisability of high speed chases, the risk caused by them, and the benefits resulting from them;

     (2)   To [review and approve new standards and course curricula for] consult with the New Jersey State Police with respect to its administration of police training courses or programs [to be offered by approved schools] for the training of police officers to be certified as a Drug Recognition Expert for detecting, identifying, and apprehending drug-impaired motor vehicle operators[.  The commission shall]  , and to consult with the Cannabis Regulatory Commission established by 31 of P.L.2019, c.153 (C.24:6I-24) with respect to [any aspects of the course curricula that focus on impairment from the use of cannabis items as defined by section 3 of P.L.    , c.   (C.        ) (pending before the Legislature as this bill) or marijuana] developing standards and course curricula for certification as a Workplace Impairment Recognition Expert 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[Any police officer certified and recognized by the commission as a Drug Recognition Expert prior to the effective date of this section, as amended by the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” P.L. 2021, c. 16  (C.        ) (pending before the Legislature as this bill), shall continue to be recognized as certified until that certification has expired or is no longer considered valid as determined by the commission, or the certification is replaced by the police officer with a new certification in accordance with the new standards and course curricula for certification described in this paragraph.]

     p.    To review and approve new standards and course curricula developed by the Department of Corrections for both basic and in-service training of State and county correctional police officers and juvenile detention officers.  These courses for the State  correctional police officers and juvenile detention officers shall be centrally provided at the Corrections Officers' Training Academy of the Department of Corrections.  Courses for the county correctional police officers and juvenile detention officers shall also be centrally provided at the Corrections Officers' Training Academy unless an off-grounds training program is established by the county.  A county may elect to establish and conduct a basic training program for correctional police officers and juvenile detention officers seeking permanent appointment in that county. The Corrections Officers' Training Academy shall develop the curriculum of the basic training program to be conducted by a county;

     q.    To administer and distribute the monies in the Law Enforcement Officers Training and Equipment Fund established by section 9 of P.L.1996, c.115 (C.2C:43-3.3) and make rules and regulations for the administration and distribution of the monies as may be necessary or appropriate to accomplish the purpose for which the fund was established.

(cf: P.L.2021, c.16, s.85)

 

     3.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill in section 1 amends section 48 of P.L. 2021. c. 16 concerning certain rights and obligations of employers and employees concerning the use of cannabis items.

     The bill provides that 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 48 of P.L. 2021, c. 16.  The bill provides an employer may determine to employ or not to employ a Workplace Impairment Recognition Expert in the employer’s discretion.  Nothing in subsection a. of section 48 of P.L. 2021, c. 16 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.

     The bill provides that no employer shall take any action which has the effect of prohibiting an employee using cannabis products during non-work hours except under the following circumstances:

     (1)   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 in the bill have been met;

     (2)   when the nature of the work of an employee is operating, maintaining, constructing or repairing a public utility that is subject to the jurisdiction of the Board of Public Utilities;

     (3)   when such actions are required under the federal Omnibus Transportation Employee Testing Act of 1991, 49 U.S.C. s. 5331; or

     (4)   when the employer is subject to the Railway Labor Act, 45 U.S.C. § 151 et seq.

     (5)   when the employee is a law enforcement officer and the duties of the employment require the possession of a firearm.

     Section 2 of the bill amends N.J.S.A. 52: 17B-71 to provide that the Police Training Commission shall consult with the New Jersey State Police with respect to its administration of police training courses or programs for the training of police officers to be certified as a Drug Recognition Expert for detecting, identifying, and apprehending drug-impaired motor vehicle operators, and to consult with the Cannabis Regulatory Commission established by 31 of P.L.2019, c.153 (C.24:6I-24) with respect to  developing standards and course curricula for certification as a Workplace Impairment Recognition Expert 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.