(Note: This is an edited excerpt of an article written by Daniel R. Dowdy in the March 2021 issue of Labor and Employment Law Quarterly. Read the full article, which includes a detailed analysis of employer considerations regarding employee marijuana use, here [login required].)
Marijuana, cannabis, weed, THC, pot, Mary Jane, ganja. Call it what you want. Employees in New Jersey recently gained broad protection to consume it recreationally and to be under its influence while off-duty.
Following the passage of New Jersey’s November 2020 Ballot Question 1 with the support of ⅔ of the voting electorate, Article IV, Section VII, Paragraph 13 of the New Jersey Constitution became effective Jan. 1, 2020, making lawful the “growth, cultivation, processing, manufacturing, preparing, packaging, transferring, and retail purchasing and consumption of cannabis, or products created from or which include cannabis, or products created from or which include cannabis, by persons 21 years of age or older …” subject to regulation by the Cannabis Regulatory Commission.
Despite what has amounted to years of Democratic infighting over accompanying criminal and social justice measures, debate over which communities should benefit from related tax revenues, competing ideas about decriminalization versus legalization, which at one point led to the sponsors of such respective bills having to be physically separated, and a last-minute “magic mushroom” provision stalling legislation in the Assembly, the New Jersey Legislature met its Jan. 1 deadline, passing Assembly Bill 21 (A21) and Assembly Bills 1897 and 4269 (A1897) on Dec. 17, 2020.
However, Gov. Phil Murphy refused to sign these bills into law without an amendment addressing penalties for underage use. After a lengthy stall on this issue, a standalone bill addressing consequences for underage use and possession was adopted by both houses on Feb. 22, 2021. Upon delivery to Murphy, with only 20 minutes remaining on his deadline to sign or veto A21 and A1897, Murphy signed all three bills into law. A21 and A1897 were signed into law by Murphy as P.L. 2021, c. 16 (A21) and P.L. 2021, c. 19 (A1897) just before noon on Feb. 22, 2021.
Each of the two laws comprising the enabling legislation for this new constitutional amendment takes a different approach to removing penalties for marijuana use and possession. For example, P.L. 2021, c. 19 decriminalizes possession and distribution of certain amounts of cannabis and provides for expungements of prior convictions for cannabis-related offenses that would not be considered a crime under the new law.
Pursuant to P.L. 2021, c. 19, simple possession of up to 6 ounces of marijuana or 17 grams of hashish is no longer a crime, offense, or civil violation of law. The predecessor bill to P.L. 2021, c. 19 - S2535 - contained provisions for the expungement of pending marijuana charges or prior convictions but did not contain a provision making such expungements automatic. An amendment to A1897, adopted on Dec. 17, 2020, directs such expungements to take place automatically “by operation of law” “on the first day of the fifth month next following the effective date of [A21].” The expungement provision that was signed into law does not require an eligible person to petition a court in order to have their offense expunged.
Automatically expunged convictions and pending criminal matters include, among other things, distributing less than 1 ounce of marijuana, disorderly persons offenses as well as fourth degree crimes of obtaining or possessing marijuana, using or possessing paraphernalia, and being under the influence of marijuana or hashish.
For employers in New Jersey, it will be important to determine what acts constitute a crime under P.L. 2021, c. 19 for purposes of any employment-related background checks or inquiries as well as what inquiries are now prohibited as a result of the expungement provisions of the bill.