New Jersey AG Issues Fresh Guidance on Drug Testing for Law Enforcement

The attorney general of New Jersey last week issued a new directive on drug testing requirements for law enforcement agencies, a necessary update following the launch of the state’s legal cannabis market earlier this year. 

Matthew Platkin, who was confirmed as the state’s AG last month, said that following the opening of the regulated marijuana industry in April, “many law enforcement agencies delayed the random drug testing of officers under the AG Drug Testing Policy to allow time for additional guidance and clarity.”

Under the directive that Platkin issued last Tuesday, law enforcement agencies “must conduct at least two random drug tests during the period from April 1, 2023 to December 31, 2023.”

In each of those two tests, the agencies must test “at least 10 percent of the total number of sworn officers within the agency, and every officer must have an equal chance of selection during each test.”

Those same testing requirements are in place for the period from January 1, 2022 until March 31, 2023, with Platkin’s directive noting that the “two random tests … conducted during the ‘calendar year’ of 2022 shall be extended and interpreted to include the period January 1, 2022 to March 31, 2023,” and that the “two random tests … conducted during the ‘calendar year’ of 2023 shall be amended and interpreted to include the period April 1, 2023 to December 31, 2023.”

The directive continued: “If a law enforcement agency has conducted two random drug tests during calendar year 2022, and then conducts a test during the period, January 1, 2022 to March 31, 2023, that third test may count toward the 2023 requirement of two tests. To summarize, law enforcement agencies must conduct a total of at least four random drug tests between January 1, 2022 and December 31, 2023.”

Platkin said that in March 2020, the start of the COVID-19 pandemic in the United States, the state AG’s office “sought to ease the administrative burden on New Jersey’s law enforcement agencies by suspending or delaying certain statewide reporting, training, and certification deadlines.”

Voters in the Garden State approved a ballot measure in 2020 that legalized adult-use cannabis. In April, New Jersey launched the regulated retail marijuana market. 

With the new changes in effect, state regulators have been forced to tweak certain rules and practices, including workplace drug testing. 

Last month, the New Jersey Cannabis Regulatory Commission, which oversees the state’s legal marijuana program, announced updated guidance for drug testing, saying effectively that employers still have the right to test their workers.

“The purpose of this guidance is to clarify and explain the NJ-CRC’s understanding of the existing legal requirements under the governing law,” the commission said in the announcement at the time. “This guidance does not impose any additional requirements that are not included in the law and does not establish additional rights for any person or entity. Please note, however, that adverse employment actions may impact employees’ protected rights under various laws including, but not limited to, state and federal anti-discrimination laws. When incorporating this guidance, employers should ensure compliance with all state and federal employment laws.”

The commission said that “employees cannot be acted against solely due to the presence of cannabis in their body, but employers have the right to drug test on reasonable suspicion of impairment.”

Jeff Brown, the executive director of the New Jersey Cannabis Regulatory Commission, said in the announcement that it was important to show that striking “a balance between workplace safety and work performance and adult employees’ right to privacy and to consume cannabis during their off hours is possible.”