After significant legislative haggling, New Jersey legalized adult-use recreational cannabis in February of 2021. Many questions arose during the process of how this new law would affect what employers and employees can and cannot do. Some of it is based off the existing framework that regulates the usage of medical marijuana, which remains legal in New Jersey. Other aspects derive from laws in other states that had previously legalized recreational cannabis. Employers operating in other states may have been more prepared if they adjusted their policies.
Part of the major concern behind legalizing marijuana was reversing decades of inconsistent enforcement and penalizing of the existing bans. Some of that prohibition created barriers to employment opportunities for those either using cannabis or convicted of cannabis-related violations. This has led to worsening of inequalities, failure to pursue career goals and betterment of life, along with certain towns and cities struggling to retain businesses and reliable taxpayer bases.
What Rights Do Employers Have in New Jersey?
Under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), employers cannot take punitive action against employees due to the usage or non-usage of cannabis products. This covers wrongful termination, cutting pay, hours, benefits, working conditions or responsibilities, and any other privileges associated with that specific employment, including hiring a job candidate.
Also, there cannot be any penalties incurred if a worker test positive for cannabis because the associated chemicals that travel through the body reside longer than other substances. This creates a diversion in precedent and practice. The law originally offered more leeway to employers to determine if the cannabis use had an impact on the hiring of candidates or the work performance of existing employees. That would have followed regulations involving alcohol use, which allows employers more discretion and autonomy on discharging employees who showed that alcohol usage affected their job performance.
However, like alcohol, the new legislation also allows employers to create a cannabis-free workplace. Employers are not obligated to allow workers to consume, transport, sell, grow, possess, or be under the influence at places of business. This ability to set boundaries and exclude cannabis products from locations also covers private landlords who own properties, including retail stores, warehouses, and leased office spaces. Also, employers with federal contracts and other restrictions may use the stricter federal regulations to avoid any potential complications or negative ramifications to those contracts or overall business.
Can I be Drug Tested?
Employers will still be allowed to drug test current employees, which will include a physical evaluation along with a reliable scientific test of fluids. In taking this course, employers must designate a Workplace Impairment Recognition Expert (WIRE), which must be trained and certified in identifying cannabis usage and impairment, along with investigating any potentially related workplace accidents. This WIRE designee can be an existing employee or an outside contractor. Drug testing may be used in these instances:
- Pre-employment screening.
- As part of a work-related accident investigation.
- Upon reasonable suspicion of an employee’s use of cannabis items at work.
- Upon finding observable signs of intoxication related to cannabis items at work.
- As part of a regular schedule of testing to determine cannabis use at work.
Employers may use the results of the drug test, which includes the physical evaluation, as part of consideration of further action against employees, which could lead to suspension, termination, demotion, or any other disciplinary action.
Another major concern in the new law was what could be done regarding prior arrests or convictions from overturned laws banning cannabis. The CREAMMA added provisions that disallow employers from making hiring decision solely on an applicant’s past involvement with law enforcement and now-legal marijuana. Any arrest, charges, conviction, or other adjudications cannot be the lone reason to not hire someone in most cases. Furthermore, no job applicant must be compelled to divulge such information regarding history of legal trouble involving cannabis-related offenses. These rules do not apply for candidates applying for positions in corrections, emergency management, homeland security, the judiciary, or law enforcement.
How Does the New Policy Vary From Previous Rules?
New Jersey legalized medical marijuana in 2010 and has expanded those rights with the Jake Honig Compassionate Use Medical Cannabis Act passed in 2019. The legislation does not mandate companies make many accommodations for medical marijuana users that exist for those with other major medical conditions. Medical marijuana users do not have the right to possess cannabis products at work, nor can they take time to use while at work. However, it does allow for employees to use medical marijuana at home or away from work without fear of professional repercussions. Employees must arrive at their jobs and work their shifts without being under the influence of cannabis.
Medical marijuana regulations exist to protect eligible users from discrimination at work. They are meant to mirror what others with chronic medical conditions have as protection. For instance, if an employee’s drug test comes up positive, the employer must provide written notification, and the employee can respond with a valid reason for the results.
Producing a medical marijuana card can prevent the employer from retaliating or disciplining the employee. It would likely benefit both parties if a medical marijuana card holder disclosed that to a prospective employer or boss upon receipt, giving the company an opportunity to prepare and work around any potential complications. At the same time, the employer must not violate privacy laws by disclosing this information improperly.
What Should Employers Do to Adjust to the New Cannabis Laws?
For companies that have not adjusted policy for the laws in previous states, there may be some heavy lifting involved to comply with New Jersey’s new regulations. It helps to consider what peers and competitors in the sector have done, along with consideration on any ramifications on federal contracts or future opportunities. Any alterations made to accommodate medical marijuana will alleviate some of the concern.
There remains a window of time before full enforcement occurs, likely in August 2021, which is the timeline set forth of six months following enactment. Here are some suggestions to help expedite compliance:
- Train managers and Human Resources (HR) employees on the new laws and non-discrimination policies, making them aware of what is and is not permissible. Make sure to emphasize that there is no allowance for the consumption, sale, keeping, or growing of cannabis on-site.
- Train managers and other HR employees to be able to spot signs of usage during work hours, and hire or train someone already on staff to be the WIRE observer to fulfill those obligations.
- Update drug testing policies with vendors.
- Check with landlords or other stakeholders on property policy.
- Update policies to comply with non-discrimination portions of the law, including hiring processes and drug testing.
Employees need to know their rights. They should ask questions if any confusion arises, and they should hold employers accountable to make sure they comply to new laws.
Cherry Hill Employment Lawyers at Sidney L. Gold & Associates, P.C. Protect the Rights of Those Facing Discrimination for Marijuana Usage in the Workplace
New laws can be confusing and create opportunities to exploit workers. Finding a trustworthy legal partner can go a long way to resolving disputes fairly and successfully. The Cherry Hill employment lawyers at Sidney L. Gold & Associates, P.C. have the experience and understanding to help workers stand up and protect themselves. Call us at 215-569-1999 or contact us online to schedule a free consultation. Located in Pennsauken, New Jersey, we proudly serve clients throughout South Jersey, including Cherry Hill, Haddonfield, Marlton, Moorestown, and Mount Laurel.