The sale of recreational weed just became a matter of fact in New Jersey. The State Attorney General issued an opinion that said employers, including police departments, may not impose negative consequences on employees who test positive for THC in a drug test. There may be such consequences for those who are found to be under the influence while on the job. There is now a move to make illegal for police officers to use weed off duty and, apparently, the Governor supports this.
My question is this - is it legal to single out a group and say, “For everyone else, this behavior is legal but for you it is not.”? I understand the logic (sort of) but why not apply the standard to bus drivers and anyone else who’s job requires a CDL? Or surgeons? Or the guy welding the bridge? How is this addressed in other “legal weed” states?
My former employer made being under the influence of marijuana illegal even though it is legal in Washington state. They based this on the fact that marijuana is still illegal at the federal level. It was also illegal to be under the influence of alcohol and that is legal at the federal level. Whether one would be caught depended on your job. Those that actively worked on what was considered airplanes that were capable of flight were subject to random testing. Those that worked in factories building the planes were not subject to testing unless you did something, like damaging the plane is some manner, that would rise to the level of requiring testing. This happened to me once, I pushed a stand into a wing flap resulting in a nice dent. I was immediately sent out to be tested. I passed and was able to immediately return to work. If I had failed it would have meant 30 days off without pay, drug or alcohol rehab and future random testing. Boeing’s position on marijuana never changed after it became legal in Washington state.
The key here is “under the influence”. Some drug tests are sensitive enough to detect that one indulged days before; alcohol standards tend to be in the neighbourhood of .08 to .04 or less is allowed since it does not (or, should not) impair your abilities.
the gotcha, as I would guess with airplanes, is that they are federally regulated and the feds still consider it completely illegal. Similarly, if you work for the FBI or have a security clearance or some such, admitting or testing positive for an illegal substance is disallowed. The person may be subject to blackmail or there may be the risk they will somehow cause problems if they indulge in the future - not to mention, they (until recently) also would have committed a crime by buying or possessing the stuff.
IIRC it was in the news that a few of Biden’s potential lower-level white House staff were excluded from those jobs for admitting they smoked pot at one time in their life, thus disqualifying them from security clearances.
As for laws - unless it discriminates against a protected class, I don’t see any legal repercussions. An employer maybe can refuse to hire someone who smokes, or drinks -OK. Refusing to hire someone who might get pregnant (gender) or is divorced (marital status) or similar lifestyle situations, not OK. (I suppose you could argue nicotine addiction is a disability…)
The question becomes, can they force you to take a medical test? And can the doctors tell the employer the results of such tests? I guess that depends on the conditions you agreed to when you hired on. IANAL, but - If you agreed to allow such tests as a condition of employment, then they can do so. Making pot legal probably does not change that.
My state has a law (Wisconsin statute 111.35) that protects employees to use lawful products or participate in lawful activities on their own time.
But there are exceptions. One is if the product or activity violates federal law. So that right there snuffs out marijuana use.
It also specifically says it’s legal to discriminate against fire fighters who smoke tobacco, even off the clock. They are the only profession targeted by the law and so far it has not been turned over on any legal challenge.
I used to work for a large corporation that did mandatory random drug testing. Didn’t matter how busy you were or what kind of deadline you were on, if your number came up HR would show up to escort you to the bathroom. I always thought that was B.S. and wondered why it didn’t violate the law against unreasonable searches. But being hired for a job means willingly giving up some of your liberty in exchange for money.
I remember at another job, a Michigan-based health care company my company used called Meritain came out with a ban on any of their employees smoking at all, on or off hours. They gave some time period deadline, maybe a month, for any employee who smoked to either quit smoking or quit their job. That caused a pretty big uproar at the time.
A friend of mine is a nurse in Santa Barbara. When she worked for an in home visit health care company, she was not allowed to use any sort of tobacco product or smell of tobacco during her shifts.
Most tech companies have long ago stopped screening for cannabis with the exception of the ones who have lots of government defense projects. In some it’s just for the people with security clearances.
If you’re talking about the 4th Amendment that only applies to the government, not private parties. And like you said, when you voluntarily join an employer you do willing give up certain things.
I’m a LEO and my supervisors can search my locker at work whenever they want. It’s in the written policies I signed when I was hired.
Carve outs for members of a group really aren’t that uncommon. Most common are exemptions for current and retired law enforcement personnel being allowed to carry weapons where the general population is prohibited even when licensed.
This is just a reverse version of that. And with LEOs not being a protected class I don’t see where it would be ruled unconstitutional in the current legal environment.
It’s more of a matter of each individual agencies policies but not a matter of law. My current department says I am not on duty when off the clock but I can put myself on duty in certain instances but I am not required to.
During my first career as a Deputy Sheriff we were required to always have our badge/ID and firearm on us (unless consuming alcohol) and to take action on anything that raised to the level of a misdemeanor. And if it was learned that you didn’t you could draw a suspension.
The issue in New Jersey may be more complex than elsewhere. I’m not sure about other states. I believe the Attorney General is correct, as written it is illegal for an employer to discipline an employee for marijuana use on their free time. It’s not a statute. It was a ballot vote to change the constitution. It is written into the state constitution. The process to change it will be a little more complicated than updating the wording in a statute.
They owe me a hell of a lot of overtime then.
That logic would also mean that a police officer couldn’t drink or get drunk on their off time because they are always on duty. That is not the case.
We recently got a reminder from our security officer that cannabis usage needs to be self-reported even if legal where used since it is still illegal at the federal level. Implied threat of losing security clearance and therefore job, but nothing explicit.
NJ has a constitutional provision about using weed on your own time? Or is it a general employee privacy thing?
But as we are in GQ, I don’t know of any general law that prohibits an employer from policing off the clock activities. Henry Ford would send guys around to search his employees’ homes and if you were caught drinking booze you got fired. I realize that was 100 years ago, but I know of no law that prohibits an employer from doing that today.
That’s the entire reason for this thread. The NJ law attached to the constitutional amendment legalizing weed states employers can take no adverse action against employees for possessing, buying or using marijuana when not at work and no adverse action just because it shows up in their bloodstream. So now you know of one law that prohibits an employer from doing that.
It would be an interesting debate in a relevant thread if an employer thought that an employee violating federal law and wanted to take adverse action can be stifled by a state law/constitutional amendment to the contrary.
This article pulls out the relevant wording from the Act. It’s a very long and confusing Act since it covers all of the nuts and bolts of the system that’s been set up.
Except I posted a state statute from my state that does exactly that.
Fire fighters can be prohibited from smoking off the clock.
My department legally prohibits me from doing certain things that detract or are not in line with the ethics of my position. I cannot be a bartender, private detective, stripper (heh) or even an over the road truck driver among other things. And if suspected of anything like that I will be investigated by infernal affairs.
I am allowed to own a successful gun dealership, however.
