Governor Murphy’s recent signature on New Jersey’s law legalizing marijuana for adults ages 21 and older ushers in a new age of employee protection in the Garden State. New Jersey is now the only state in the country that protects employees from being fired, discriminated against, or eliminated as a job candidate just because they use marijuana outside of the workplace or were charged with illegal marijuana use. In essence, the law, known as CREAMMA (Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act) creates a new class of protected workers—recreational marijuana users.
What else does that mean for employers?
- Your rights and obligations to keep a safe and drug-free workplace haven’t changed.
- The law lets you ban the use or possession of marijuana in the workplace or during the performance of the job.
- You are permitted to test for marijuana.
However, if you suspect that an individual is high from marijuana use while performing their duties or during work hours, it will be very difficult to prove. It is also not enough of a reason to take adverse action against a team member.
Employers may require a drug test as part of a pre-employment screening. You may also screen current employees to determine drug use during working hours. The big challenge is that a test to determine real-time intoxication isn’t available. Given that THC can stay in the body for days or weeks, it will be very difficult to prove that the person is under the influence at work.
To account for that, New Jersey legislators added a second kind of test to an employer’s obligation. In addition to the scientific test (blood, urine or saliva testing), a physical evaluation by a new type of expert will be required. The expert is called a “Workplace Impairment Recognition Expert”: an individual who will be trained and certified to detect and identify if an employee is impaired from marijuana.
Employers cannot decide whether a candidate is a good fit for a job based on their use (or not) of recreational marijuana. You also cannot make a hiring decision based solely on an applicant’s arrest, charge, or conviction (juvenile included) related to marijuana or hashish (charge). It is also illegal to require an applicant to disclose any such charge.
While CREAMMA is effective immediately, the employment-related provisions of the law will likely take at least a few months to follow through. New Jersey needs to establish a commission, and that five-member group will need to develop some rules. Until then, and until more is known about drug testing, it’s smart for employers to look at their employment applications, interview questions and other policies to make sure they are ready for this major change to New Jersey employment law.