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New Jersey Cannabis Legislation Provides Significant Employee Protections: Part I

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In November 2020, New Jersey voters overwhelmingly approved to amend the state’s constitution to legalize the personal, nonmedical use of cannabis for persons at least 21 years old. On February 22, 2021, Governor Phil Murphy signed AB 21, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”) into law.  NJCREAMMA legalizes the recreational use of cannabis for adults age 21 and over and provides significant protections for employees who use marijuana. New Jersey is the first state in the nation to protect employees from almost any adverse employment action as it relates to off-work, recreational marijuana use.

Summary 

NJCREAMMA prohibits employers from taking adverse action against an individual solely because they use or test positive for marijuana [i].  The text reads that “no employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.” Largely, the law outlines the framework for legal use of recreational cannabis by individuals 21 and older.

Drug Testing Considerations

While employers are still able to conduct several forms of drug tests--such as reasonable suspicion or post-accident testing—the law limits employers from relying on these tests in making an employment decision based on a positive result alone. For example, the law notes that an employer may require a drug test “upon finding any observable signs of intoxication” or “following a work-related accident subject to investigation by the employer,” however, employers can only take adverse action following a positive test if:
  1. the testing program uses “scientifically reliable testing methods” and
  2. the physical evaluation is done by a Certified Workplace Impairment Recognition Expert (WIRE) who determines the individual was impaired while at work[ii].
The Commission is still working on establishing the qualifications and standards related to the role.
The law also allows for random drug testing or regular screening of current employees to determine use and impairment during the employee’s prescribed work hours.  Employers are still able to conduct pre-employment testing; however, since they are not able to take adverse action based on a positive test result alone, it is unclear the purpose or helpfulness of this practice.

Limited Exceptions

Employers are still required to comply with federal requirements if there is a “provable adverse impact on an employer subject to the requirements of a federal contract.” For example, federal rules and regulations set forth by the Department of Transportation (DOT) are still applicable. Importantly, the law does not require employers to forgo rights and obligations to a “drug and alcohol-free workplace,” meaning that employers are not required to allow employees to use or possess marijuana during work hours or work while under the influence. Furthermore, this legislation does not make it legal to drive under the influence or while impaired.

What Next?

The New Jersey Cannabis Regulatory Commission (CRC) will be responsible for providing further clarity on how to comply with the law. The CRC has been given 180 days to develop the regulations. Until that clarity has been provided, employers will likely have to overhaul their drug testing policies and programs in light of the broad requirements of the new law.   
On the same day, Governor Murphy signed two companion bills related to cannabis reform. Stay tuned for Part 2 of this blog for further information on the remaining two bills recently enacted.
 
[i] The law defines adverse action as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment
 
[ii] Employers are still free to use scientifically reliable testing services and use their own judgement in making a good faith suspicion determination and are not required to employ a Workplace Impairment Recognition Expert.