The Garden State Gets Greener – New Jersey Legalizes Recreational Marijuana
This blog was originally published in Forbes on March 18, 2021.
In November 2020, voters in New Jersey overwhelmingly approved Public Question 1, amending the state’s constitution to legalize the purchase and recreational use of marijuana for persons at least 21 years old. While the amendment became effective at the start of the year, it wasn’t until February 22, 2021, when New Jersey Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJ CREAMMA) into law. NJ CREAMMA provides far-reaching protections for recreational marijuana users and saddles employers with many new considerations for their workplace drug programs.
Substantial Protections for Marijuana Users
New Jersey has afforded recreational marijuana users some of the most generous protections in the United States. Under NJ CREAMMA, employers are prohibited from refusing to hire or adversely affecting the employment of recreational marijuana users. Specifically, are employers are barred from “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” as a result of their marijuana use.
NJ CREAMMA’s reach has significant impacts on employers in New Jersey; employers can no longer assert a rational relationship between a worker’s marijuana use and its effect on the worker’s ability to do a job. Exceptions to NJ CREAMMA are limited. An exception exists where compliance with federal requirements is affected if there is a “provable adverse impact on an employer subject to the requirements of a federal contract, then the employer may revise their employee prohibitions consistent with federal law, rules, and regulations.” As drafted, NJ CREAMMA does not include specific exceptions for workers in safety-sensitive positions. Employers hiring workers in certain safety-sensitive jobs, such as those regulated by the U.S. Department of Transportation, may engage their legal counsel in assessing provisions within the law that assert that “personal use of cannibals shall not be construed…to amend or affect in any way any state or federal law pertaining to employment matters…to require a person to violate a federal law…or to exempt a person from a federal law or obstruct the enforcement of a federal law, [including prohibiting] a party to a federal contract from…use of cannabis items to the extent necessary to comply with the terms of the contract or to satisfy federal requirements for the contract” when assessing their compliance with federal regulations and NJ CREAMMA.
Employers in New Jersey are still permitted to maintain a zero-tolerance “drug and alcohol-free workplace” under NJ CREAMMA. Additionally, employers are not required to permit possession, sale transfer, or the use, consumption, or being under the influence of marijuana in the workplace. Employers may only consider a worker’s off-premises and off-duty use of marijuana if they are impaired while at the workplace or on the job.
NJ CREAMMA requires that the yet-to-be-formed New Jersey Cannabis Regulatory Commission establish standards for identifying impairment. Employers will be required to engage a Workplace Impairment Recognition Expert “WIRE” when assessing a worker’s perceived impairment. The WIRE will be responsible for “detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substances, and for assisting in the investigation of workplace accidents.”
Employers may continue to require pre-employment drug testing that includes marijuana. However, NJ CREAMMA prohibits an employer from taking adverse employment action against an individual based solely on a positive marijuana result. Reasonable suspicion testing is also permitted if an employer believes a worker is using marijuana during the course of their responsibilities or work hours or identifies “observable signs” of marijuana intoxication. Post-accident testing is also permitted. Employers may conduct periodic or random screening per their policies to determine a worker’s marijuana use during work hours. However, the intent of on-the-job periodic or random screening should be to identify impairment and likely to work through the WIRE process once established and not to automatically disqualify an individual who tests positive for marijuana while at work.
Many unanswered questions remain for employers. Once the New Jersey Cannabis Regulatory Commission is established, employers can expect to get clarity behind the regulations needed to implement and maintain the state’s recreational marijuana program. In the interim, employers should begin revising drug-free workplace policies to align with NJ CREAMMA and, most importantly, assess their adjudication programs so as to not adversely affect a worker’s employment based on a positive marijuana test with limited exceptions.