NJ Recreational Cannabis Law Raises Questions for Employers
March 8, 2021
Types : Alerts
On February 22, 2021, Governor Phil Murphy legalized the recreational use of cannabis for persons age 21 and older with the signing of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”), which provides certain protections for consumers and employees.
This legislation raises important questions for employers concerning cannabis and the workplace. Significantly, employers cannot refuse to hire, discharge, or discipline any individual simply because he or she uses cannabis outside of the workplace, even where such use was recreational. The law also limits employers’ right to take actions against employees because the employee tests positive for cannabinoid metabolites. These requirements are in addition to an employers’ duty under New Jersey law to accommodate employees who use medical marijuana outside of the workplace.
Maintenance of a Drug-Free Workplace
Despite its broad protections for employees who use recreational cannabis outside of the workplace, CREAMMA expressly recognizes employers’ ability to maintain and enforce drug-free workplace policies prohibiting the use, consumption, or being under the influence of cannabis in the workplace during work hours. As the law specifically states, nothing in the new law requires an employer to permit or accommodate the use, consumption, being under the influence, possession, transfer, display, transportation, sale, or growth of recreational cannabis or cannabis items in the workplace.
The new law also does not prohibit employers from testing employees or applicants for cannabis use, but it does restrict employer tests for cannabis use to specific circumstances and further requires a specific procedure for testing. For current employees, an employer may conduct a drug test where the employer (1) has a reasonable suspicion of an employee’s use of cannabis while on duty or during work hours; (2) observes signs that an employee is intoxicated or under the influence of cannabis at work; or (3) conducts the test following a work-related accident. In addition, drug tests may be conducted randomly, as part of pre-employment screening, or regular screening of current employees to determine whether the employees are using cannabis during work hours.
Because, however, cannabis may be detectable for days or weeks after an individual last used it, CREAMMA requires that a drug test to determine whether cannabis was improperly used on duty involve two steps: (1) a scientifically reliable, objective testing method (including blood, urine or saliva tests) and (2) a physical evaluation by an individual with a “Workplace Impairment Recognition Expert” certification. If the drug test and physical evaluation both determine that the employee was impaired while on duty, an employer may take an appropriate adverse action against the employee.
No exception for employees in safety-sensitive positions
Unlike other states that have legalized recreational cannabis use, CREAMMA does not contain any exception for employees in safety-sensitive positions, such as employees who operate heavy machinery. Employers, however, who are subject to the United States Department of Transportation’s (“DOT”) drug-testing requirements for safety-sensitive positions, may continue to follow the DOT guidelines. Nevertheless, CREAMMA makes clear that it does not supersede laws related to driving under the influence of marijuana or cannabis items or driving while impaired by marijuana or cannabis.
Exception for Federal Contractors
In addition to employers and employees subject to DOT guidelines, because cannabis remains an illegal drug under federal law, CREAMMA contains a carve-out for federal contractors. If the provisions of the New Jersey law jeopardize an employer’s obligations under a federal contract, then the employer may test and take adverse actions against employees who have cannabis present in their systems, consistent with the terms of the employer’s obligations under the federal contract.
Impact of CREAMMA outside of New Jersey
CREAMMA may also impact employer’s actions outside the state of New Jersey. Many states – including New York – maintain off-duty conduct laws that prohibit employers from taking adverse actions against employees for engaging in legal, off-duty conduct. Thus, for example, if an employee uses recreational cannabis while off-duty in New Jersey, a New York employer may not be able to discipline or take other action against the employee for such use.
The employment related provisions of CREAMMA do not become enforceable until the Cannabis Regulatory Commission promulgates rules and regulations. Nevertheless, employers should review and update workplace policies and practices concerning drug testing to ensure that they do not violate the new law, and employers should consult with legal counsel before taking any adverse action against an employee or prospective employee for use of cannabis. In addition, because the Cannabis Regulatory Commission is expected to implement rules and regulations within the next 180 days, employers should also carefully monitor developments to ensure continued compliance with the law.