New Jersey Legalizes Marijuana, Creates New Protected Employee Class
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As states across the country join the growing trend of
decriminalizing and legalizing marijuana, the implications for
employers have become more relevant than ever. New Jersey recently
became the newest state to clarify the interplay between marijuana
legalization and employment with the New
Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace
Modernization Act, or NJCREAMMA.
NJCREAMMA, also referred to as the “legalization
bill,” both legalizes marijuana for adults aged 21 and older
and creates a new protected class for employees. Paralleling
existing protected classes, employers are prohibited from refusing
to hire or taking adverse employment action against employees who
recreationally use marijuana. Employees are accordingly given
recourse in the event they are refused employment or otherwise
adversely affected in their employment by the presence of marijuana
in their system. Notably, the law applies to all employees
Employers have no need to fear, though – alcohol and drug-free
workplace policies are here to stay. An employer remains within
their rights to discipline an employee who is under the influence
of, selling, transporting, or possessing marijuana in the
workplace. Further, employers are still able, but not required, to
conduct employee drug tests under limited circumstances.
Specifically, if an employer has reasonable suspicion that the
employee is using marijuana while working, the employer observes
signs of marijuana intoxication, or the employer is investigating a
work related-incident, they are permitted to perform drug tests.
Employers may also conduct drug tests for pre-employment screening,
random screening, and regular screening to ascertain current
employees’ marijuana use during work hours.
However, the law imposes a twofold requirement for employers
conducting drug tests. An employer must ensure the drug testing is
both scientifically valid, objective, and reliable
(i.e. urine, blood, and saliva samples)
and that there was a physical evaluation
of the employee by a Workplace Impairment Recognition Expert.
Importantly, the Workplace Impairment Recognition Expert must be
certified in detecting marijuana to help investigate workplace
incidents. If an employee tests positive and an employer has
adhered to these requirements, the employer is within their rights
to take adverse action against that employee.
The sections of NJCREAMMA that relate to employment will not
become effective until August 21, 2021, but employers should begin
reviewing and updating any workplace drug testing policies in
advance of this date to ensure compliance. While the law leaves
many questions unanswered, particularly in the area of when a
Workplace Impairment Recognition Expert needs to be involved, we
will hopefully see future regulatory guidance that clarifies
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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