In November 2020, New Jersey voters approved the legalization of adult recreational cannabis use. On February 22, 2021, after months of negotiations between the Governor’s Office and the State Legislature and within minutes of a state deadline, Governor Murphy signed a trio of bills establishing the legal and regulatory framework for recreational cannabis.
Among the new laws are NJ A21 (the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization (“CREAMM”) Act) and A1897/4269, which together provide various employment-related protections for adult recreational cannabis users, adding to the existing protections for registered users of medical cannabis. [CLICK HERE for our July 22, 2019 eAlert on the Jake Honig Compassionate Use Medical Cannabis Act.]
Although the CREAMM Act is effective immediately, its employment-related protections do not become operative until the Cannabis Regulatory Commission adopts its initial rules and regulations. Here are some FAQs on what we know so far:
Q1: Can we require prospective employees to undergo a drug test for cannabis?
A: Yes. Employers may require drug testing as part of pre-employment screening. See Q3 for limitations on relying on a positive result.
Q2: Can we test current employees for cannabis?
A: Yes. Employers may test current employees for controlled substances, including cannabis, upon reasonable suspicion that the employee was using cannabis during the performance of work responsibilities, upon finding “observable signs” of intoxication, or in connection with a work-related accident subject to investigation by the employer. Drug tests that include cannabis also may be done randomly or as a regular screening of current employees to determine use during work hours. Employers may use the outcome of such tests to determine appropriate employment actions, but may not rely solely on a positive result.
Q3: Can my company have a blanket policy against hiring an applicant or providing for discipline or termination of an employee who tests positive for cannabis?
A: No. An employer may not refuse to employ or take any adverse action “solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid,” unless failure to do so would put the company in violation of a federal contract or cause it to lose federal funding.
Employers also should keep in mind that, if an employee or job applicant tests positive for cannabis, the Jake Honig Act requires the employer to provide written notice of the opportunity to present a “legitimate medical explanation”, including authorization for medical cannabis issued by a health care practitioner, proof of registration as a medical cannabis user, or both. [CLICK HERE for more information about this mandated process in our July 22, 2019 eAlert.]
Q4: What must a cannabis drug test entail?
A: Drug tests of applicants or employees must include two components: (1) “scientifically reliable” objective testing methods (e.g., blood, urine or saliva testing), AND (2) a physical evaluation to determine the current state of impairment.
Q5: Who may conduct the physical evaluation portion of the drug test?
A: A physical evaluation to determine an employee’s or applicant’s state of impairment must be conducted by an individual certified as a “Workplace Impairment Recognition Expert,” under standards to be set forth by the Commission. Workplace Impairment Recognition Experts can be full- or part-time employees or employers may consider contracting out this service.
Q6: Can we terminate an employee for smoking marijuana at home during his or her free time?
A: No. Employers may not refuse to hire, discharge from employment, or take any other adverse action against an individual “because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items” during non-working hours.
Q7: Can my company have a drug-free workplace policy?
A: Yes. Notwithstanding these new protections, an employer still may maintain a drug-free workplace policy and may prohibit the possession or use of cannabis in the workplace or the use of cannabis or intoxication by employees during work hours.
In addition to the CREAMM Act’s restrictions, companies should be aware that A1897/4269 prohibits an employer from relying solely on for employment decisions, requiring an applicant to reveal, or taking adverse actions against an applicant solely on the basis of an arrest, charge, conviction or adjudication of delinquency for certain manufacture, sale or use offenses relating to small amounts of marijuana or hashish, derivatives of cannabis.
An employer who does so is subject to civil penalties of up to $1,000 for the first violation, $5,000 for the second and $10,000 for each subsequent violation. Exceptions are made for positions in law enforcement, corrections, the judiciary, homeland security, or emergency management. This provision takes effect later this year in conjunction with the decriminalization of the underlying offenses.