Marijuana Considerations & Laws In New Jersey

Employment Information

Employer Concerns

Significant

• Because of
  • • the conservative nature of New Jersey’s stand on employees’ rights to use marijuana,
    • their peoples’ 2020 vote to ratify an amendment to the state’s constitution permitting the recreational use of marijuana, and
    • the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA)– yet to be signed by the Governor as of 1-2021,

it is recommended that an employer seek counsel from an informed state-specific attorney to learn how to respond to a positive test for marijuana that could have happened off-duty.

Other items of significance:

• New Jersey law does not prohibit employers from taking adverse action based on test results, more details are in the law. If an employee/applicant tests positive for marijuana, they must be provided written notice of the opportunity to present a “legitimate medical explanation for the positive test result.” They must be given up to three days to submit information to the employer explaining the test result.  This includes the option to submit the original sample for a confirmatory retest at the employee’s expense, or medical marijuana authorization from a health care practitioner or proof of registration with New Jersey’s Cannabis Regulatory Commission, or both.  If either of those documents are presented, the employer should seek legal counsel before taking action based on the positive test.
• Employers should be prepared to engage in the interactive process if an employee discloses medical marijuana use outside of the workplace or tests positive for marijuana use. The employer should seek legal counsel before taking action based on the positive test.

• The law protects employers if accommodation would threaten harm or danger, conflict with federal requirements, contracts or funding, or would prevent the employee from fulfilling any of his or her job responsibilities.

• Employers may prohibit or take adverse employment action based on the use or possession of intoxicating substances during work hours or on workplace premises outside of work hours.

• Employers may not take adverse employment action based solely on a medical marijuana patient status. 

• Private insurers or governmental assistance programs are not required to reimburse a person of costs associated with the medical use of marijuana. However, in two cases, private employers were required to reimburse an injured worker for medical marijuana. 

• Regarding obligations and rights related to drug testing in New Jersey (NJ), give high attention to constitutional privacy issues and NJ case decisions.

 

Testing

• Regarding obligations and rights related to drug testing in New Jersey (NJ), give high attention to constitutional privacy issues and NJ case decisions.
• Under New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA)- yet to be signed by the Governor as of 1-2021 – “drug test” may be expanded to include a physical examination by an individual certified as a Workplace Impairment Recognition Expert.

 

Hiring/Termination

• See Employer Concerns above.

• Cannot refuse to hire, terminate or discriminate against an individual based solely on their status as a medical marijuana patient.

• Employers should be prepared to engage in the interactive process if an employee discloses medical marijuana use outside of the workplace or tests positive for marijuana use. The employer should seek legal counsel before taking action based on the positive test.

 

Discipline

• Employers may prohibit or take adverse employment action based on the use or possession of intoxicating substances during work hours.
• Employers should be prepared to engage in the interactive process if an employee discloses medical marijuana use outside of the workplace or tests positive for marijuana use. The employer should seek legal counsel before taking action based on the positive test.

 

Use/Possession

• Employers may prohibit or take adverse employment action based on the use or possession of intoxicating substances during work hours. 

• Although smoking is permitted, it is specifically prohibited in the workplace. All other smoking falls under same regulations as those for smoking tobacco.

• Only in privacy of home.

Other Impacting Laws (e.g. drug testing, workers’ compensation, unemployment)

• IMPORTANT: Regarding obligations and rights related to drug testing in New Jersey (NJ), give high attention to constitutional privacy issues and NJ case decisions.

• Apply the Checklist of Impacting Issues for Employee Use of Marijuana provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Miscellaneous

• New Jersey has laws against attempts to defraud a drug test.
• There are many issues that may become employer-relevant through the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) – yet to be signed by the Governor as of 1-2021. These may include what may constitute “scientifically reliable tests,” whether the employer can rely on using a carve-out of safety-sensitive for exemption of certain employee protections, etc.

 

Sources (e.g. Bill Number, Authority)

• New Jersey Rev. Stat. 24:6I et al. “New Jersey Compassionate Use Medical Marijuana Act”– Medical marijuana
• Jake Honig Compassionate Use Medical Cannabis Act – Medical marijuana
• New Jersey Law Against Discrimination
• New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) – Recreational use of marijuana (yet to be signed by the Governor as of 1-2021)
• New Jersey Rev. Stat. 43:21-5(b) – Unemployment related
• New Jersey Rev. Stat. 34:15-1 – Workers’ compensation related
• New Jersey State Constitution 1947 Art. 1 Sec. 7 – Drug testing related
• New Jersey Rev. Stat. 2C-36-10 – Drug test cheating related
• Review New Jersey case decisions related to drug testing and marijuana

 

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