In February 2021, New Jersey Governor Phil Murphy signed the state’s landmark Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act, which legalized recreational marijuana for Garden State residents over 21.
While the recreational cannabis use rules went into effect immediately, employers needed rules for how this affected drug policies at work. The state Cannabis Regulatory Commission adopted workplace rules on August 19, 2021.
The provision of the Act that will have the most impact on many who use marijuana recreationally:
[n]o employer shall . . . take any adverse action against any employee . . . because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.
Under the new rules, employers can still prohibit employees from using or possessing marijuana at work, or during working hours. The working hours portion is particularly meaningful in the hybrid work environments developed under the ongoing COVID pandemic, as employees may well be working from home. Employers can not demote or fire an employee based on a positive drug test. However, they can act when an employee comes to work impaired by marijuana.
But the conditions for dismissal under the act are: 1. To obtain the opinion of a Certified Workplace Impairment Recognition Expert (WIRE) and 2. To test to determine if the worker is impaired using a scientifically valid method.
Currently, the Commission has not released standards for the WIRE certification and employers are not required to perform a physical test until this is done. As is stated in the act, the employer is not allowed to dismiss or take other adverse action against an employee for a drug test that comes up positive for marijuana.
While it is clear that adverse action is not to be taken for a worker’s positive drug test, the grounds for dismissing an employee who is suspected of using marijuana, or being under the influence of it, at work, are nebulous until the Commission implements the WIRE certification program.
The legalization of recreational use of marijuana for Garden State adults is still new and the workplace laws around cannabis are confusing. If you suspect you were wrongfully terminated for a positive drug test, contact the South Jersey wrongful termination lawyers at Sidney L. Gold & Associates, P.C. We can evaluate your case and help you receive the justice and compensation you deserve. Call us today at 856-245-5737 or contact us online for a free consultation. Located in Pennsauken, New Jersey, we serve clients throughout South Jersey, including Cherry Hill, Haddonfield, Marlton, Moorestown, and Mount Laurel.