Legal but not Unregulated

A recent Appellate Division decision highlights a shift that law enforcement agencies—and public employers generally—need to fully understand: a positive cannabinoid test is no longer the basis for discipline. In In the Matter of Montavious Patten, a Jersey City police officer was terminated after testing positive for THC following a random drug test. Under older policies, that alone might have ended the analysis. The Court made clear that is no longer the case.

Under CREAMMA, employers cannot take adverse action simply because an employee tests positive for cannabis or used it off duty. The officer’s termination was upheld for a different reason entirely. He purchased cannabis from an unlicensed source, which remains unlawful under New Jersey law.

The Jersey City case makes clear that in cannabis matters involving officers, discipline must be tied to illegal activity, on-duty impairment, or a demonstrable violation of departmental rules grounded in lawful behavior. A positive drug test, standing alone, is not enough. This aligns with broader developments at the State level, including the Attorney General’s evolving approach and the reduced emphasis on cannabinoid testing at State labs.

Law enforcement officers remain held to a higher standard, and the Court reaffirmed that they are a special category of public employee expected to model compliance with the law. That higher standard, however, must be applied within the framework of CREAMMA. Because police departments operate as instrumentalities of their municipalities, these same constraints and risks ultimately fall on the governing body. Departments can no longer rely on zero-tolerance cannabis policies, federal firearm arguments, or test results without supporting evidence of misconduct.

For law enforcement officers, who are expected to follow the law, the question is no longer whether they used cannabis, but can be from where they obtained it. Any law enforcement officer who is inclined to use the substance would be well advised to purchase their cannabis from licensed dispensaries.

Plosia Cohen LLC advises municipalities across New Jersey on complex employment and disciplinary issues, including those affecting their police departments. With experience arguing before the New Jersey Supreme Court, the firm provides cutting-edge guidance to help public employers navigate rapidly changing areas like cannabis regulation.