Legal Loophole Allows New Jersey Cops to Smoke Weed Off-Duty

A recent development coming out of New Jersey has all eyes on the Garden State as it contends with a legal conundrum: Can Jersey cops smoke weed off-duty? New Jersey law says cannabis is perfectly legal outside of work in private residences. The law also seems to state it's OK for everyone, with no exemptions. But could the statute really apply to law enforcement officers?

 

Let's look closely at New Jersey's cannabis regulations and the precedent they may set in other adult-use states.


How is it legal for New Jersey cops to smoke weed? Is it a loophole?

In 2021, New Jersey Gov. Phil Murphy passed legislation legalizing cannabis in the Garden State. As part of the program, a new marijuana employment law prohibited discrimination against employees for smoking, vaping, or using cannabis off the clock. In other words, no more firing employees for failing drug tests unless an employee is high on the job. The only significant condition is that Jersey residents must smoke in "private spaces"–not in public areas or while driving. The law does not say anything about excluding police officers from the program.

 

Other states and local governments, such as Colorado Springs, addressed this potential conflict before sales began. Colorado Springs included a "carve-out" in their law, allowing city, federal, and safety-sensitive employers to test and discipline workers for getting high. However, New Jersey's law does not include such a provision. Instead, the Garden State protects all workers from termination for failing drug tests, creating an apparent loophole where cops can legally consume marijuana off-duty.


Even if it's legal, can New Jersey cops still get fired for smoking weed?

In April, New Jersey's attorney general sent a memo reminding police chiefs and directors that departments "may not take any adverse action against any officers because they do or do not use cannabis off-duty." However, despite the reminder, Mayor Steven Fulop of Jersey City, the state's second-largest municipality, says not so fast. Fulop says he plans to fire any cop in his city who tests positive for marijuana, and he's not the only one. But given the state's current laws, how could firing New Jersey cops for smoking off-duty be up for debate?

 

Here's one creative argument:

Jim Pasco, executive director of the National Fraternal Order of Police, points to the federal Gun Control Act of 1968 to justify why New Jersey cops should not be allowed to smoke. This law bars anyone who uses federally prohibited substances from possessing firearms. Since marijuana remains a Schedule 1 controlled substance, the Gun Control Act implies police officers cannot legally smoke and do their job. Eight members of the state legislature sent a letter questioning how New Jersey police officers could use cannabis and still carry a firearm.


What do New Jersey politicians, cops, and residents think about law enforcement smoking off-duty?

The state's largest police union president says the water is "pretty murky." Most lawyers agree that police officers should hold off from using cannabis until lawmakers pass clarifying legislation or the courts decide on what's officially legal.

 

A few state senators say they want to introduce legislation that would bar police officers from smoking marijuana, and Gov. Phil Murphy says he is open to considering it. However, Senate President Nicholas Scutari is firmly against regulating what people do in their free time. As New Jersey's highest-ranking state lawmaker, Scutari controls which bills get a vote.

 

Police officers themselves seem split on the matter. In the Philadelphia Inquirer, officer Michael Bollentin points out that policing is one of the most stressful jobs, making officers more prone to injury and other health complications. Research shows cannabis can help manage pain and ease symptoms of stress and anxiety, which benefits police officers.

 

On the other hand, officer John Zebrowski believes that police need to maintain public trust. Because THC can stay in the body for weeks, cannabis opens police departments up to liability to prove officers are not impaired on the job.


What are the implications for New York cannabis rules?

New York recently issued guidance that employers aren't allowed to test for marijuana or fire employers for failing drug tests. However, the state did not follow in New Jersey's footsteps protecting all professional industries. Instead, New York outlined stipulations for workers who must be tested under federal and state laws, such as commercial vehicle drivers—and the NYPD.


Does New Jersey's situation set a precedent elsewhere?

A few other adult-use states, like New York, protect the average resident from workplace drug testing. But New Jersey stands alone in extending its protection to law enforcement officers as well. That said, a court case will likely test the precedent if New Jersey legislation doesn't address the issue soon.

 

Neighboring Pennsylvania is already going on the offensive to clarify to residents that it doesn't share New Jersey's loose marijuana rules and does not offer protections for officers who test positive.

 

The debate points to a broader issue with cannabis. Nationwide, states are struggling because marijuana is still federally illicit, so most regions are treading lightly. Eyes remain on New Jersey to see if legislators amend the law to exclude police and other workers or if the state protects them from disciplinary action. The law's uncertainty could affect various jobs, including airline pilots, heavy-machine operators, and firefighters.


What other states allow officers to smoke off-duty? Are they having issues?

Of the 18 states (and Washington, D.C.) that legalized recreational marijuana, only five—New Jersey, New York, Connecticut, Montana, and Nevada—passed laws protecting employees from job consequences. Twenty-one states protect medical marijuana patients from termination. But the rules remain murky in every area.

 

For example, Massachusetts, which legalized marijuana in 2016, says police officers can't partake. However, advocates in the state feel police unions will gear up for a fight the first time a cop gets fired for using while off the job.

 

In New York, EMT Benjamin Lerich recently sued the city after the fire department said he couldn't smoke his medically prescribed weed to treat his chronic Crohn's disease. In Nevada, when the Las Vegas Police Department attempted to fire an officer in 2021 who tested positive for marijuana, he sued and won at trial.


The bottom line

As of now, New Jersey cops over 21 are technically allowed to partake in cannabis use in their free time and can't be fired for it. However, New Jersey lawmakers are split over revising the law to exclude police officers and other safety-sensitive roles. Most experts agree that it could lead to messy situations as long as cannabis remains illegal at the federal level. Medical Mike's is staying up to date with cannabis news throughout the Northeast and New York area, so check in weekly for updates as this story and more continue to unfold.