By: Jonathan Landesman and Hope Steidle Kildea
On February 22, 2021, New Jersey Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), legalizing the recreational use of marijuana for adults twenty-one and over. The new law implements a November 3, 2020 ballot referendum passed by New Jersey voters amending to the state’s constitution to legalize recreational marijuana use and possession. But the legislation does not stop there. CREAMMA places significant restrictions on employment-related decisions based upon an individual’s marijuana use.
The new law prohibits employers from refusing to hire, discharging, or otherwise taking adverse employment action against an employee or prospective employee solely because the individual uses marijuana. Additionally, CREAMMA prohibits employers from taking adverse employment action against an individual solely due to a positive marijuana drug test result.
Drug-Free Workplace Policies Under CREAMMA
CREAMMA expressly authorizes employers to maintain drug-free and alcohol-free workplace policies. The law’s protections apply to employees’ off-duty, recreational use of marijuana, but do not extend to on-the-job conduct. CREAMMA expressly reserves employers’ rights to prohibit the “use, consumption, impairment, possession, transfer, display, transportation, sale, or growth” of marijuana in the workplace. Additionally, the law affirms that employers are still free to prohibit employee use of or impairment from marijuana during work hours.
Drug Testing: When, Why, and How
In addition to limiting what employers can do with drug test results, CREAMMA also restricts when and why employers can conduct drug testing to the following scenarios:
- Pre-employment drug testing
- Random drug testing of employees in safety-sensitive positions and/or regular drug testing of employees to determine use during work hours
- Post-accident drug testing (i.e. after a workplace accident subject to investigation by the employer)
- Reasonable suspicion drug testing (i.e. when an employer reasonably suspects an employee used marijuana during work hours)
- Drug testing in response to observable signs of marijuana intoxication during work hours
Although employers are prohibited from basing employment decisions solely upon a positive test result, CREAMMA does not prohibit employers from considering drug test results when deciding upon the appropriate disciplinary action to take against an employee for related conduct, such as workplace use of, impairment from, or possession of marijuana. Before taking action, employers should consider how they conduct drug tests to ensure compliance with CREAMMA’s standards.
The new law redefines “drug-test” to require a two-part inquiry. First, employers must utilize a “scientifically reliable objective testing method” (e.g., blood, urine, or saliva test). Next, employers must arrange a physical evaluation by a certified Workplace Impairment Recognition Expert (WIRE) to detect marijuana usage or impairment in the individual. Issuance of WIRE certification will be based upon standards and training requirements set forth by the New Jersey Cannabis Regulatory Commission.
Unlike other state laws legalizing recreational marijuana use, CREAMMA’s employment provision does not contain an exemption for safety-sensitive positions (i.e. jobs that could affect the health and safety of the employee, other workers, or the general public). Although the legislation has faced criticism for its potential consequences on workplace safety, it remains unclear whether interpreting regulations will adopt an exemption for safety-sensitive positions.
CREAMMA does provide a carve-out for federal contractors and grantees where compliance would result in the loss of a federal contract or grant. This exemption allows employers that are subject to a federal contract to amend their drug policies as necessary to comply with federal laws and regulations. As a result, employers who are subject to the U.S. Department of Transportation’s regulations for safety-sensitive positions, which prohibit marijuana use and mandate employee drug testing, are still able to take adverse employment action against employees and prospective employees based upon a positive drug test alone.
Forthcoming regulations from the New Jersey Cannabis Regulatory Commission should provide additional insight into employers’ obligations under CREAMMA. In the meantime, employers should review their existing drug and alcohol policies to confirm compliance with the New Jersey law. Federal contractors and grantees should closely review their contracts to ensure they have a thorough understanding of the federal laws and regulations governing their projects.
Should you have any questions about your obligations under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, or any other issues related to your drug and alcohol policy, please do not hesitate to contact Jonathan Landesman or Hope Steidle Kildea at Cohen Seglias Pallas Greenhall & Furman PC.