Legalization of Cannabis in New Jersey:
In November 2020, New Jersey residents voted in favor of the legalization of adult-use cannabis. The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”) was subsequently enacted to regulate the cultivation, distribution, and use of cannabis in the state. While NJCREAMMA allows employers to randomly drug test, screen applicants, and do routine testing of current employees, it is limited to testing for marijuana use during work hours.In addition, in order to find misconduct of cannabis use by an employee, the “ordinary”[1] test(s) and the “expert” both have to find the employee was impaired during work hours – which is intricate in itself. Unlike alcohol, marijuana can remain in a person’s blood system for a long period of time. Intoxication experts will be dealt with in the forthcoming sections, but concrete guidelines have yet to be released by the New Jersey Cannabis Regulatory Commission (the “CRC”).
Further, many issues that may arise include but are not limited to disability discrimination and accommodation issues, drug testing rights and responsibilities, state and federal statutory and regulatory compliance matters, workplace safety questions, varied obligations pertaining to government contractors, intoxication “expert” requirements, workers’ compensation implications, and employee privacy protections.
Employee Rights and Employer Responsibilities:
a. Workplace Drug Policies: Although cannabis is legal for adult use in New Jersey, employers retain the right to maintain a drug-free workplace. Employers can establish and enforce drug policies that prohibit cannabis use during work hours or on company premises. In today’s age, it is essential employers maintain clear and concise policies that align with the proposed guidelines from the CRC under NJCREAMMA.
b. Drug Testing: Employers in New Jersey are still permitted to conduct drug testing for cannabis (and other substances) as part of their pre-employment screening or during random, post-accident, or reasonable suspicion testing. However, it is critical to ensure drug testing policies comply with existing laws and are applied consistently to avoid potential discrimination claims.
c. Medical Marijuana: New Jersey’s Compassionate Use Medical Marijuana Act (“CUMMA”) protects qualified patients’ rights to use medical cannabis. Employers should engage in an interactive process with employees to determine the extent of ones’ use. Cannabis use during “on the clock” work hours remains forbidden, and a terminable employment action, under applicable state law. An employer is not required to accommodate medical marijuana use in the workplace, during work hours, or while operating, navigating or physically controlling a vehicle in the performance of job duties. Employers should consult with a legal professional if they find employee pushback under the state’s medical marijuana program.
Off-Duty Cannabis Use and Employment:
a. Non-Discrimination: The NJCREAMMA explicitly states that employers cannot take adverse employment actions against individuals based solely on their status as a cannabis consumer or their participation in the state’s legal cannabis program. This means that off-duty cannabis use, within the boundaries of the law, should not be grounds for hiring, termination, or discrimination – unless it would violate a federal law, contract, or funding agreement.
b. Current Rights and Remedies: There is skepticism within New Jersey as to who can bring a cause of action under NJCREAMMA and what remedies are available. According to a recent decision from a New Jersey federal court, NJCREAMMA does not provide aggrieved employees with a private right of action and remedy. In this recent decision (which is pending on appeal), Zanetich v. Wal-Mart Stores East, Inc d/b/a Walmart, Inc., et al., the New Jersey District Court clarified that only the state’s Cannabis Regulatory Commission (CRC) – and not private citizens – has the authority to enforce NJCREAMMA.
Specifically, in this matter, the plaintiff applied for a job at a Wal-Mart store in New Jersey. Wal-Mart offered him the job subject to successful completion of a drug test. However, after his drug test revealed the presence of marijuana in his system, Wal-Mart rescinded the job offer. As a result, the plaintiff filed a class-action lawsuit alleging two claims: (1) violation of NJCREAMMA and (2) failure to hire and/or termination in violation of New Jersey public policy. The defendants moved to dismiss the complaint, arguing that NJCREAMMA does not explicitly provide a private cause of action and that New Jersey common law does not recognize a cause of action based on an employer’s failure to hire. In short, the court agreed and called upon state lawmakers to “amend the statute to clearly evidence” an intent to create a private cause of action, “as it has previously done in many other employment related statutes.” The appeal will likely not be the final declaration and comment on this issue, and developments remain to be seen. But, for now, this is a victory for employers across the state.
c. Impairment in the Workplace: While employers cannot discriminate against employees for off-duty cannabis use, they maintain the right to address impairment in the workplace. If an employee’s cannabis use affects their performance, compromises safety, or violates workplace policies, employers may take appropriate disciplinary action. With that being said, the CRC recently issued interim guidance of workplace impairment.
d. The Guidance and “WIRE” Experts: NJCREAMMA, provides guidance on drug tests that include “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” anda “physical evaluation,” which must be conducted by a Workplace Impairment Recognition Expert (“WIRE”). The law gives the CRC the power to issue regulations establishing certification standards for WIREs, but none have been issued to date.
In September of 2022, the CRC issued its impairment guidance with a sample Reasonable Suspicion Report Form (“Form”) – which can be found here. However, they stated, for now, employers need not use a WIRE to conduct a physical evaluation to determine suspected cannabis use or impairment during work hours (this is solely because the WIRE certification standards have yet to be published or established). The standards should be coming down from the CRC in the imminent future.
At this time, an employer should know they are still prohibited from taking adverse action solely because an employee has cannabis metabolites in their system, but should always consult with a lawyer to discuss the specifics of the matter. Moreover, employers should be proactive and begin using the sample report Form (employers are permitted to use their own form if they wish to do so), update their employee policies in accordance with the CRC guidance, and begin training or hiring employees who can determine cannabis intoxication during work hours.
Employer Obligations and Workplace Safety:
a. Safety-Sensitive Employees: Employers have a responsibility to ensure a safe working environment, particularly in safety-sensitive positions such as operating heavy machinery or handling hazardous materials. “Safety-sensitive” generally means that a position involves some aspect of a heightened danger that requires an employee’s full and unimpaired skills and judgment to safely execute his or her job. New Jersey effectively prohibits employers from taking adverse action against employees or job applicants based solely on a positive marijuana test, even if the position at issue would otherwise qualify as safety-sensitive.
If an employee is found to be impaired by cannabis at the time of a workplace accident (safety-sensitive or otherwise), the employer may have substantive grounds to contest a workers’ compensation claim and the related fault issues. These intoxication issues concerning a workplace incident should always been discussed with a lawyer well-versed in the space.
b. Federal Employees/Contracts: Moreover, the interim guidance from the CRC notes that certain employers may be required by federal contract or law to follow specific protocols related to determining reasonable suspicion and drug testing and they are expressly permitted to continue doing so. Additionally, employers must incorporate, and comprehend, the soft guidance in a manner that complies with federal anti-discrimination laws, federal positions, or other federal regulations.
i. Note on Federal Contracts: N.J.S.A. 24:6I-52b(1)(b) specifically provides that if it is determined that any of the provisions set forth in that section of the law result in a provable adverse impact on an employer subject to the requirements of a federal contract, then the employer may revise their employee prohibitions to be consistent with federal law, rules, and regulations. As such, employers may be required by federal contract or law to follow specific protocols related to determining reasonable suspicion and drug testing and are permitted under N.J.S.A. 24:6I-52 to continue to do so.
c. Reasonable Suspicion: Lastly, employers have the right to address employee impairment and can take action if there is reasonable suspicion that an employee’s cannabis use is affecting their job performance or safety. However, it is crucial to handle such situations delicately and follow established protocols to avoid potential legal pitfalls. As discussed above, the ordinary blood, urine, and saliva tests are not permissible on their own to determine impairment because of the discrepancy between use and intoxication, and how long THC remains detectable in the body. This is how cannabinoid use differs from alcohol use and detection.
As the sample Form outlines, the following are some of the factors/indicators that should be considered when one presumes reasonable suspicion of cannabis use of another: red/bloodshot eyes; flush/pale/sweaty face; dry mouth; disheveled appearance; agitated/insulting speech; uncharacteristically talkative; sleepy/stupor; anxious/fearful; loss of inhibition; and swaying/stumbling/staggering. It is clear these indicators remain highly subjective and suggestive, and will likely bring a slew of additional obstacles to the legal playing field.
Similarly, the drug testing method now recommends a blood, urine or saliva test along with a physical evaluation of the employee to determine (and prove) current impairment. At this time, until WIRE standards are published, it is recommended that employers designate an “interim staff member” or contractor to assist with determinations of suspected cannabis use. It is also strongly encouraged to document evidence/proof of impairment in the workplace to support the use of a drug test to confirm reasonable suspicion.
As New Jersey embraces the legalization of cannabis, employers and employees must navigate the evolving landscape of cannabis and employment law. It is understandable that many employers are left trying to make sense of how to comply with CREAMMA and this “optional” interim guidance. Once the CRC issues concrete guidance and publishes the standards and qualifications for WIREs, then employers (and employees) should become well-rounded and highly educated on these regulations. Understanding the rights and responsibilities associated with cannabis use in the workplace is essential for maintaining a productive and legally compliant work environment.
In sum, by adhering to pertinent state laws, establishing clear drug policies, and ensuring fairness and consistency, employers can strike a balance between employee rights and workplace safety in the era of legalized cannabis. Understanding the nuances of cannabis-related employment laws is vital to ensure compliance and foster a harmonious working environment for all parties involved.
Disclaimer: The information provided in this attorney blog post is for general informational purposes only and should not be considered as legal advice or a substitute for professional legal counsel. No attorney-client relationship is established by accessing or reading this blog post, and any communication or information exchanged through this platform is not confidential or privileged. The content presented here is solely for informational purposes and should not be attributed to any affiliated entity, organization, or company. The accuracy, completeness, and applicability of the information presented in this blog post cannot be guaranteed, and readers are advised to consult with a qualified attorney regarding their specific legal issues or concerns.
Reprinted with permission from the June 26, 2023 issue of New Jersey Law Journal. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
[1] The “ordinary” test(s) refer to those that have been administered over the years to detect and establish intoxication of persons. These tests often include the standard blood, urine, and/or saliva tests.
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