State Issues Rules Concerning the Recreational Use of Marijuana and Impact on Users’ Employment
New Jersey legalized the recreational use of cannabis in 2021. Now, employers want to know when and what type of disciplinary action they can take if a worker tests positive for cannabis. Below is what employers need to know to maintain a drug-free workplace in New Jersey and comply with state law employment protections for cannabis users.
New Jersey is one of 19 states (plus the District of Columbia) that have either legalized or decriminalized the adult use of recreational cannabis. On Feb. 22, 2021, Governor Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act (CREAMMA) into law.
CREAMMA legalizes the recreational use of marijuana for adults age 21 and older. The law includes broad employment protections for off-duty, off-worksite cannabis users. CREAMMA went into effect on August 19, 2021.
The same day, the New Jersey Cannabis Regulatory Commission (NJCRC) issued its first set of Personal Use Cannabis Rules. N.J.A.C. 17:30. Recreational cannabis sales in New Jersey began on April 21, 2022.
Under CREAMMA, “[n]o 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.” N.J.S.A. 24:6I-52.
Can Employers Still Test for Drugs?
The answer is yes. Employers can conduct workplace drug testing under state law. This includes doing pre-employment screening and random testing for safety-sensitive positions.
New Jersey employers may also ask an employee to submit to a drug test if the employer reasonably suspects cannabis usage or impairment while working.
Lastly, the employer can require an employee to get tested after a work-related accident.
Notwithstanding the above, CREAMMA provides that “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 from engaging in conduct permitted under [CREAMMA].” N.J.S.A. 24:6I-52.
Therefore, under CREAMMA, a positive drug test for cannabis, standing alone, will not justify taking an adverse action regarding the employee’s employment. There must be some other objective, good-faith basis of on-the-job impairment to support an adverse employment action.
This means CREAMMA protects recreational marijuana users who test positive for tetrahydrocannabinol (THC), which is the main psychoactive compound in cannabis, from being fired (or not hired).
In effect, recreational marijuana users are now a protected class in New Jersey.
Finally, the NJCRC Provides Guidance
On September 9th, the NJCRC released its Interim Guidance on Workplace Impairment. Pending the issuance of final rules, the guidance outlines how employers who want a drug-free workplace in New Jersey should address employees’ suspected drug or alcohol impairment on the job.
The interim guidance confirms an employee’s off-duty use of cannabis, standing alone, can’t be the reason for an adverse employment action. Employers can fire workers for being under the influence during work hours while on work premises. However, there are specific practices the employer needs to follow to comply with CREAMMA.
When the employer has a “reasonable suspicion” the employee has used cannabis at work, the employer must use a Workplace Impairment Recognition Expert (WIRE) to identify and document signs of an employee’s potential use of or impairment from cannabis.
They must complete this before requiring a drug test.
The employer must designate at least one employee as an “interim WIRE.” The employer should train that WIRE to identify potential signs of impairment.
Alternatively, the employer can hire a third-party contractor to observe the employee.
However, the interim guidance does not describe the training the employer should give a WIRE. Indeed, the interim guidance doesn’t discuss the qualifications or training a WIRE needs.
That’s coming next.
The interim guidance included a Reasonable Suspicion Observed Behavior Report. Two supervisors must complete this report before having the employee take a drug test.
Employers are not required to use this specific report.
If they have a similar form they already use, they may do so.
The WIRE can detail well-known signs of cannabis impairment on the report. This includes bloodshot, watery, or droopy eyes and lack of coordination.
The odor of marijuana or alcohol is also a sign of the use of drugs or alcohol at work.
Establish a Standard Operating Procedure (SOP)
Employers should issue SOPs for completing Reasonable Suspicion Observed Behavior Reports. These SOPs need to include the observations of the employee by the interim WIRE and their direct supervisor. Additionally, they include the terms under which the employee will be drug tested.
Is There an Exception for Safety-Sensitive Positions?
Not in New Jersey. Unlike several other states’ recreational cannabis laws, CREAMMA does not contain any exemptions based on job duties and responsibilities. However, the legislature has introduced a bill which would create exceptions for safety-sensitive positions approved by the NJCRC.
But for now, CREAMMA’s employment protections above apply to all positions, including those designated by an employer as safety-sensitive positions,. Those positions include operating forklifts and other heavy machinery.
Do Federal Contractors Have to Comply with CREAMMA?
CREAMMA includes a carve-out for employers who are federal contractors. CREAMMA provides that if it would “result in 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.” N.J.S.A. 24:6I-52.
Federal contractors that are subject to U.S. Department of Transportation (DOT) drug testing requirements for safety-sensitive and other DOT-regulated positions, which prohibit the use of marijuana and other Schedule I drugs for any reason, will likely be permitted to continue to enforce zero-tolerance drug policies.
Remember, federal law still makes the possession and use of cannabis illegal.
What Employers Need to Know
Under CREAMMA, employers can maintain a drug- and alcohol-free workplace. Nothing in CREAMMA requires an employer to allow or accommodate employees using or being impaired by cannabis or alcohol while working.
However, employers may have to change policies and drug testing programs to comply with CREAMMA’s employment protections and testing requirements.
In addition, employers should train human resources professionals and supervisors about the law’s prohibition on any adverse employment action triggered by recreational cannabis use.
Once the NJCRC issues final WIRE certification standards, employers who want to conduct drug testing will need to train managers on WIRE certification.
Alternatively, they will have to hire a WIRE-certified consultant to determine if an employee is impaired while working.
Therefore, at the present time, employers should proceed with caution before disciplining an employee for a positive cannabis test. They should consult experienced New Jersey employment lawyers before doing so.
If You or Your New Jersey Business Wants Guidance on How to Run a Drug-Free Workplace, Give Us a Call
The legalization of cannabis use in New Jersey has placed another legal issue on the laps of human resource professionals and managers. With the passage of CREAMMA, New Jersey recognizes another class of protected workers. Employers now have new procedures they must establish to run a drug-free workplace. The New Jersey employment lawyers at Schiller, Pittenger & Galvin, P.C. can help. Call us at our Scotch Plains office at 908-490-0444 or contact us here.