In February of 2021, Governor Murphy finally signed the long awaited “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” which legalizes recreational, adult (at least 21 years old) use of marijuana (or “cannabis”).
One of the major concerns which has existed since the very beginnings of this Act was how it was going to effect drug testing in the workplace and what job protections might need to be created in relation to employees’ marijuana use. The Act does address job protections. However, while several sections of the Act came into effect immediately, the employment-related provisions are not expected to take effect until the newly-created Cannabis Regulatory Commission establishes regulations providing specific procedures and rules for generally practices in compliance with the Act. That Commission is supposed to do so within 180 days of the passing of the Act, bringing us to approximately August 21, 2021 before marijuana job protections will come into effect.
The Marijuana Act specifically prohibits employers from refusing to hire, firing, or taking some other adverse action against someone specifically because that person uses marijuana recreationally. Indeed, an employer cannot discriminate against an individual in compensation or in any terms, conditions, or privileges of employment based upon marijuana use outside of the workplace. Thus, marijuana use appears to have the same protections as other protected classifications such as race and gender discrimination. Again, we will have to see how the Committee addresses this to see what the specific rules will be.
In line with that, the Act also sets forth that an employer cannot take an adverse action against an employee solely based on a drug test showing the presence of cannabinoid metabolites in the employee’s system. However, employers are still allowed to have drug-free workplace policies and are still permitted to drug test employees. For instance, an employer can still require drug testing as part of pre-employment checks, if there is a reasonable suspicion that the employee is using marijuana while on the job or clear signs of being under the influence, random drug testing or as part of regular screenings, or as part of a work-related accident investigation. An employer can also still have policies against an employee using, having, or being under the influence of marijuana while working and can discipline the employee for any violation of that policy. (This is not necessarily the case when there is medical marijuana use which could impact laws against disability discrimination; this new marijuana Act is specifically focused on recreational use.)
If an employer drug tests the employee using scientifically valid methods and a certified Workplace Impairment Expert has conducted an evaluation of the employee and determined that the employee is under the influence of marijuana during work hours, then the employer may be able to take disciplinary action against the employee in accordance with their policies.
While this prohibition against adverse employment actions is generally applicable to all employees and employers in New Jersey, where the employer is a federal contractor or agency, those employers may be required to comply with federal law which has not yet legalized recreational marijuana use. Thus, if compliance with the New Jersey Marijuana Act would result in a provable adverse impact on an employer subject to the requirements of a federal contract, then that employer may revise their employee prohibitions consistent with federal law, rules, and regulations.
The employment and business attorneys at McLaughlin & Nardi, LLC are closely monitoring the laws, rules, and regulations related to New Jersey’s changing environment on marijuana and cannabis laws. Our lawyers are experienced with a wide range of employment and business laws, disputes, and transactions, and can advise both employers and employees about their rights and responsibilities under New Jersey evolving employment law requirements. Once these laws take effect, employers should also review their employee handbooks and policies and adjust them as needed. To learn more about what we may be able to do to help, please contact us by filling out the contact form on this page or call us at (973) 890-0004.