HRM 7630 Module 3 Oral Argument: Off-Duty Cannabis Use and a New Jersey Firing Example

A Positive Test Is Not Impairment: Argument for the Employee in a New Jersey Cannabis Dismissal

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MBA in Human Resource Management, Thomas Edison State University

HRM-7630: The HRM Professional and Attorney Relationship

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Month Day, Year

A Positive Test Is Not Impairment: Argument for the Employee in a New Jersey Cannabis Dismissal

The Fact Pattern

The team was assigned the following facts. Pinelands Community Bank fired an operations clerk with six years of good performance reviews after a random drug test showed cannabis metabolites. The clerk processes deposits in a back office and does not operate machinery or vehicles. No supervisor observed signs of impairment, and the test was not prompted by any incident. The bank's policy, written before New Jersey legalized adult-use cannabis, prohibits any positive test. The clerk says she used cannabis legally at home on a weekend. Our team represents the employee.

Opening

May it please the court. This case asks whether New Jersey law allows an employer to fire an employee for lawful conduct off duty, based on a test that cannot show impairment at work. It does not. New Jersey law protects employees from adverse action for using cannabis lawfully outside work, and permits employers to act on actual impairment during work hours. The bank had no evidence of impairment. It fired a good employee for being a lawful adult on a weekend.

Argument One: The Statute Protects Lawful Off-Duty Use

The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, enacted in 2021, provides that an employer may not refuse to hire or employ a person, discharge a person or take adverse action against an employee because that person does or does not use cannabis items, N.J. Stat. Ann. § 24:6I-52. The law also limits how employers may rely on drug tests: a test used to support adverse action must combine a scientifically reliable test with a physical evaluation to determine whether the employee is impaired. The legislature drew a clear line between private, lawful conduct and conduct at work. The bank's policy, written for a time when cannabis was illegal, ignores that line.

Argument Two: The Employer May Act on Impairment, Not Metabolites

The statute preserves the employer's right to maintain a drug-free workplace and to act when an employee is impaired during work hours. It also anticipates testing that combines a scientifically reliable test with a physical evaluation by a trained Workplace Impairment Recognition Expert. The reason is scientific: cannabis metabolites can remain detectable for days or weeks after use, long after any effect has worn off, so a positive test alone shows past use, not present impairment. Here there was no reasonable suspicion, no observation of impairment and no evaluation. The bank relied on the test alone, which the statute does not permit. Research on cannabinoid pharmacokinetics confirms that metabolites can be detected in urine long after psychoactive effects end, especially in frequent users (Huestis, 2007).

Argument Three: No Safety or Federal Exception Applies

The bank may argue that it is federally regulated and that federal law still prohibits cannabis. But the statute's exceptions for federal requirements apply where federal law or a federal contract requires testing or where compliance with federal law would be jeopardized. The bank has identified no federal regulation requiring drug testing of back-office clerks, and her role involves no safety-sensitive duties such as driving or operating equipment. A general reference to federal law does not create an exception the legislature did not write.

Anticipated Questions

Closing

The legislature chose to treat lawful adult cannabis use like other lawful off-duty conduct while protecting workplaces from impairment. The bank's policy did not change with the law, and it fired a good employee on evidence that shows only what she did on a weekend. We ask the court to hold the termination unlawful.

Lessons for HR and Counsel

Preparing the argument shows why HR policies must be reviewed with counsel when the law changes. The bank's policy was lawful when written and became a liability when the law changed. Walsh (2012) stresses that HR practices must track legal developments; a joint annual review of policies by HR and counsel would have caught this one.

References

Huestis, M. A. (2007). Human cannabinoid pharmacokinetics. Chemistry & Biodiversity, 4(8), 1770-1804. https://doi.org/10.1002/cbdv.200790152

N.J. Stat. Ann. § 24:6I-52 (West 2021).

Walsh, D. J. (2012). Employment law for human resource practice (4th ed.). South-Western Cengage Learning.