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New Jersey - Considerations for Marijuana in the Workplace

Medical
Marijuana Law:

Recreational
Marijuana Law:

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Employer Concerns – Significant to Review

  • (Wild v. Carriage Funeral Holdings, Inc. (A-91-18) 2020 WL 1144882 (NJ March 10, 2020)) The court found that New Jersey’s Compassionate Use of Medical Marijuana Act enables an employee who has a qualifying condition and uses marijuana as stated in the law can bring a discrimination claim (per New Jersey’s Law Against Discrimination) against the employer if s/he applies adverse employment action as a result of the employee’s positive marijuana test.
  • Because of
    • the conservative nature of New Jersey’s stand on employees’ rights to use marijuana,
    • Their many intersecting laws related to the use of marijuana, and o the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace
    • the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) – adopted August 19, 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 especially if use could have happened off-duty (recreationally or for medicinal use).
  • Employers can maintain and enforce drug-free workplace policies and prohibit use, possession, being under the influence of marijuana in the workplace or during working hours.
  • Nothing in New Jersey’s marijuana laws are to impact the requirements of the employer under a federal authority or contract including law, rules and regulations. The employer will remain in compliance with those obligations.
  • New Jersey laws do not identify any carve-out specifications or exemptions for safety-sensitive positions.
  • Cannot refuse to hire or apply any adverse action because the individual does or does not use cannabis (including recreationally).
  • An employer cannot take adverse action solely due to the presence of cannabinoid metabolites in an employee’s drug test due to their recreational use of marijuana.
  • The Jake Honig Compassionate Use Medical Marijuana Act (which replaced the NJ Compassionate Use Medical Marijuana Act), requires that 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. Irrespective of this, as a result of NJCREAMMA, an employer should seek legal counsel before taking any adverse 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 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.
  • NJCREAMMA does not contain an express private right of action for violations of the law. However, there are legal complications that make this a possibility, and an employer should rely on assistance from a reliable resource in these matters.

Testing

  • Regarding obligations and rights related to drug testing in New Jersey (NJ), give high attention to constitutional privacy issues and NJ case decisions.
  • Because the New Jersey marijuana laws directly address workplace testing, we are including the testing applications they do not prohibit:
    • a pre-employment screening;
    • upon reasonable suspicion of an employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities or during work hours;
    • upon finding any observable signs of intoxication related to usage of a cannabis item;
    • as part of … regular screening of current employees to determine use during an employee’s prescribed work hours;
    • random testing (which, consistent with Hennessey v. Coastal Eagle Point Oil Co., is limited to employees in safety-sensitive positions); and
    • following a work-related accident subject to investigation by the employer (even in the absence of suspicion of intoxication).
  • If employers are testing for marijuana, before they can take adverse action, there must be a physical evaluation in order to determine an employee’s state of impairment conducted by a Workplace Impairment Recognition Expert (WISE). See 9/9/2022 Guidance issued while the WISE certification program is developed.
  • Under New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) – adopted August 19, 2021, and in effect until August 19, 2022 – no standards have yet to be established for the employer requirement of having a “Workplace Impairment Recognition Expert,” assess impairment of an employee suspected to be under the influence. Thereby until the 2022 date, employers will not be able to perform this physical evaluation.  Update 09/09/2022: Interim Workplace Impairment Guidance (Guidance) issued to assist employers with handling employees suspected of being under the influence of cannabis at work.

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.
  • Cannot refuse to hire or apply any adverse action because the individual does or does not use cannabis (including recreationally).
  • An employer cannot take adverse action solely due to the presence of cannabinoid metabolites in an employee’s drug test due to their medical or recreational use of marijuana off duty.
  • 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 marijuana test.
  • An employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid as a result of engaging in conduct permitted under N.J.S.A. 24:6I-31 et al. – legal use of marijuana off duty.
  • A positive marijuana test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action. See 09/09/2022 Workplace Impairment Guidance (Guidance)

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 an interactive process if an employee discloses medical or recreational marijuana use outside of the workplace and 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 to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

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)
  • Article IV. Section VII New Jersey Constitution – Recreational marijuana
  • 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
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

Other States Marijuana Considerations

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