The US state of New Jersey has introduced protections for employees who use cannabis recreationally and employers who drug test for it in the context of the state's new legal framework for cannabis regulation.
On 22 February 2021, New Jersey Governor Phil Murphy signed the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (‘CREAMMA') into law. The move follows New Jersey voters' passage of a ballot initiative last November to legalise recreational cannabis for those 21 and older. Not only does CREAMMA establish the legal framework for New Jersey's nascent adult-use cannabis industry, but it also contains several protections for New Jersey employees who use recreational cannabis, creates a new protected class for which New Jersey employers must now account, and establishes new rules for employers to heed if they drug test employees or applicants for cannabinoid metabolites.
Job protection for adult cannabis users
CREAMMA prohibits all employers from refusing to hire an applicant or discharging an employee because the person ‘does or does not smoke, vape, aerosolize or otherwise use cannabis items' in accordance with the new law. Similarly, the law bans companies from taking any adverse action against employees due solely to the presence of cannabinoid metabolites. These provisions create a new protected class for adult employees who engage in lawful recreational cannabis use.
Employers, however, are not without respite. CREAMMA specifically allows employers to maintain a drug and alcohol–free workplace, and to ban the use, consumption, being under the influence, and possession of cannabis in the workplace or during work hours. The law also contains a carve-out for government contractors, allowing those businesses to ‘revise their employee prohibitions consistent with federal law, rules, and regulations,' but only if they can demonstrate a ‘provable adverse impact.' Notably, however, CREAMMA does not contain an exception for ‘safety sensitive' positions.
In short, New Jersey employers do not need to allow employees to use, possess or be impaired by cannabis while at work, but the new law effectively allows employees to use cannabis outside of work and on their own time without fear of reprisal.
Drug Testing and ‘physical examinations'
CREAMMA also allows employers to drug test employees and applicants for the presence of cannabis. Specifically, employers may test for cannabis under the following circumstances:
- upon reasonable suspicion of an employee's use of cannabis ‘while engaged in the performance of the employee's work responsibilities';
- upon finding any ‘observable signs of intoxication related to usage of a cannabis item';
- following a workplace accident as part of an employer's investigation;
- in accordance with pre-employment screening;
- in accordance with regular screening of current employees ‘to determine use during an employee's prescribed work hours'; and
- randomly (but in accordance with New Jersey common law surrounding random testing).
The law's provisions regarding drug testing, however, contain a unique limitation. Any drug test for THC, in addition to being ‘scientifically reliable', must also be accompanied by a ‘physical evaluation' conducted by a person who has been certified to recognise drug impairment. The New Jersey Cannabis Commission (the ‘Commission') is tasked with establishing a Workplace Impairment Recognition Expert certification programme to train and certify individuals to conduct these ‘physical evaluations' on behalf of employers. Provided the employer follows these requirements, it can then use the results of the drug test when determining disciplinary action.
Bottom line for employers
CREAMMA's employment protections and unique drug testing provisions present several open questions for employers. What is the future of pre-employment drug screening if it must be accompanied by a physical examination? How do employers reconcile their right to drug test ‘to determine use during an employee's prescribed work hours' when cannabinoid metabolites can remain in a person's bloodstream for upwards of thirty days? How will the Drug Recognition Expert (DRE) certification process work? How many employer designees can get certified and how much will it cost?
Luckily, employers have some time before these provisions take effect (but not much). The new employment protections and drug testing requirements shall become operative once the Commission promulgates rules and regulations. The Commission, in turn, has 180 from the effective date (i.e. 21 August 2021) to develop its regulations. We recommend any employer with employees working in New Jersey speak with employment counsel to thoroughly review their policies and practices surrounding cannabis use and drug testing.
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