Employers Need to “Weed” Their Drug Policies: Cannabis Legalized for Recreational Use in New Jersey

New Jersey became the latest state to legalize recreational use of cannabis on February 22, 2021, when the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) was enacted. The impact of this new law will be felt with particular force in the employment context, as the employment provisions of the law restrict employers’ ability to discipline or terminate employees for using cannabis and regulate employer drug testing for cannabis.

The employment law provisions of CREAMMA, N.J.S.A. §24:6l-52, have not yet become operative, but employers should plan now to modify their drug policies and procedures to comply with the new law. The employment protections will become operative after the Cannabis Regulatory Commission (CRC) adopts initial rules and regulations.

Overview of CREAMMA’s Employment Provisions

Significantly, CREAMMA prohibits employers from taking adverse action against applicants and employees solely because of cannabis use. The mere fact that an employee or applicant uses cannabis recreationally, outside of work, may not be the basis for refusing to hire or for taking disciplinary action against an employee. The new law also regulates employer drug testing practices, by prohibiting employers from taking adverse action solely due to the presence of cannabinoid metabolites in the specimen. Drug testing for marijuana is problematic, because of difficulties in determining the level of intoxication or impairment at the time of testing. Thus, the law prohibits employers from making an adverse employment decision against an employee solely on the basis of a failed drug test for marijuana.

CREAMMA and Drug-Free Workplace Policies

So, how can an employer ensure that employees are not under the influence of cannabis at work? The good news for employers is that CREAMMA permits employers to maintain drug-free workplace policies that prohibit the use, consumption, or possession of cannabis in the workplace. Similarly, employers remain free to prohibit employees from being intoxicated by cannabis during work hours. Employers may take adverse employment actions against employees who use or are intoxicated by cannabis at work.

There is an obvious conflict between the law’s prohibition on taking action against an employee solely due to the presence of cannabinoids metabolites in a drug test, and the employer’s ability to enforce drug-free workplace policies. The law resolves this issue by providing limited circumstances in which an employer may conduct drug tests for marijuana, providing minimum standards for the testing procedure used, and most significantly, requiring a physical evaluation by a certified individual to determine intoxication.

Drug Testing and Physical Examination

CREAMMA permits employers to conduct drug testing for cannabis in certain situations, as follows:

  • reasonable suspicion of employee’s usage of cannabis while engaged in the performance of work responsibilities;
  • upon finding any observable signs of intoxication related to usage of a cannabis item;
  • following a work-related accident;
  • random testing; and
  • pre-employment screening.

Any drug test conducted must “include scientifically reliable objective testing methods and procedures” such as blood, urine or saliva testing. The drug test must also include a physical evaluation component, conducted by an expert certified to make an opinion on the employee’s state of cannabis impairment, referred to as a “Workplace Impairment Recognition Expert (WIRE).” The WIRE certification program will be developed by the commission. Employers may designate certain employees for WIRE certification, or they may engage an independent service provider to conduct the physical evaluation required by CREAMMA.

Federal Contractors

CREAMMA includes a provision addressing federal contractors, which are generally required to maintain a drug-free workplace policy. CREAMMA provides that if the law results in a “provable adverse impact” on a government contractor, the employer may revise their policy to be consistent with federal law and regulations.

Steps to Prepare

Although the employment law provisions are not yet operative, employers should familiarize themselves with the new law now. Employers that conduct drug testing for cannabis or that have zero tolerance drug policies should take steps to ensure that their policies comply with the new law once it becomes operative.