In November 2020, New Jersey residents approved an amendment to the State Constitution, legalizing recreational marijuana use. In order to implement the regulatory framework necessary to legalize recreational marijuana, on February 22, 2021, New Jersey enacted the New Jersey Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act. The Act contains significant protections for employees that New Jersey employers need to be aware of.
With the passage of the Act, New Jersey becomes the first state to protect employees from adverse employment actions based upon off-duty recreational cannabis use. The Act’s employment related provisions, which are discussed below, become effective immediately, but do not become operative until the newly created New Jersey Cannabis Regulatory Commission adopts its initial rules and regulations. Those rules and regulations must be adopted by the later of 180 days from enactment of the Act or 45 days after appointment of the Commission’s members.
With the exception of employers subject to federal laws prohibiting marijuana use, such as Department of Transportation laws, the Act prohibits New Jersey employers from refusing to hire an applicant, or taking an adverse action against an employee, solely because of the applicant’s or employee’s cannabis usage. Although employers may still prohibit workplace possession, usage, or impairment caused by cannabis use, the Act imposes significant limitations on employers. Under the Act, in order to take an adverse action against an employee for being impaired at work, the employee must both test positive for cannabis using “scientifically valid methods” and a “Certified Workplace Impairment Recognition Expert” must determine the employee to be impaired.
Unfortunately for employers, the Act provides little guidance to employers as to how to satisfy those standards because the terms “scientifically valid methods” and “Certified Workplace Impairment Recognition Expert” are not defined. Hopefully, the Commission will provide clarification for employers when it adopts its rules and regulations. Regardless, it is likely that it will be extremely difficult for employers to discipline employee’s who report to work impaired by cannabis, unless the employee is in possession or using cannabis in the workplace.
While employers wait for guidance from the Commission, they should begin to review and update their workplace drug policies and, if applicable, drug testing policies to ensure compliance with the protections granted to employees by the new law.
If you have questions about your business’s employment practices or policies, please contact us at (201) 345-5412 or through our online scheduling system to set up a complimentary consultation.