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Marijuana & Employment

New Jersey Prohibits Employment Discrimination for Cannabis Users

New Jersey laws relating to marijuana use have changed quickly and dramatically over the last few years.

In 2010, the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) legalized medical marijuana for New Jersey residents who suffer from debilitating medical conditions. Subsequent legislation and court decisions like Wild v. Carriage House LP[1] made clear that workers who use marijuana for medical conditions are protected against employment discrimination under the New Jersey Law Against Discrimination (NJLAD). An employer cannot fire, refuse to hire, demote, or take other adverse employment action against an individual based solely on their status as a registered medical marijuana patient.

New legislation, however, expands legalization to the recreational use of cannabis. On February 22, 2021, the governor signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act[2] (CREAMMA or “the Act”), which allows individuals age 21 and older to purchase and use cannabis products. The Act, is “designed to eliminate the problems caused by the unregulated manufacture, distribution, and use of illegal marijuana within New Jersey,” including crime, discriminatory incarceration, and wasteful spending on prohibition enforcement.

To properly regulate the production and sale of cannabis, as well as prevent discrimination against users, the Act created a Cannabis Regulatory Commission. The commission was instructed to craft a set of rules and regulations, which are scheduled to take effect on August 21, 2021. These rules are likely to provide more specific direction for pursuing actions against employers who discriminate against cannabis users.

Protection from Employment Discrimination for All Cannabis Users

CREAMMA expressly prohibits an employer from taking any “adverse employment action” against an individual solely because they use cannabis or have cannabinoid metabolites in their system. Adverse employment action includes

  • Refusing to hire or employ an individual
  • Barring or discharging an individual from employment
  • Requiring an individual to retire from employment
  • Discriminating against an individual in compensation or in any terms, conditions, or privileges of employment

Unlike previous legislation, CREAMMA protects all employees, regardless of job classification or the nature of their job duties. There is no exception for employees who hold certain positions that are dangerous or safety-sensitive.

Exceptions and Safety in the Workplace

The Act does not mean that employers must allow cannabis use in the workplace. Employers may continue to enforce drug-and-alcohol-free workplace policies that bar the use or possession of marijuana or marijuana products (and other drugs) on an employer’s premises or during work hours. They can also prohibit employees from being under the influence of marijuana in the workplace or during work hours.

Employers that are federal contractors are in a complicated position. Marijuana remains a Schedule I prohibited drug under federal law, so many contractors are required to prohibit its use. CREAMMA does allow employers who are subject to federal requirements to “revise their employee prohibitions consistent with federal law, rules, and regulations” (that is, to prohibit the use of cannabis by their workers) if compliance with the Act would result in “a provable adverse impact” (like the loss of a contract).

New Requirements for Drug Testing in the Workplace

Under the new law, before an employer can take action against an employee it suspects of being under the influence of marijuana at the workplace or during work hours, it must comply with certain testing procedures. First, the employer must use a scientifically valid drug screening procedure (e.g., saliva, urine, or blood tests). If that test comes back positive for cannabinoid metabolites, a certified Workplace Impairment Recognition Expert should conduct a physical evaluation of the employee to determine whether the employee is under the influence or impaired.

Employers may still conduct pre-employment drug testing on applicants, although they cannot base hiring decisions solely on the results of that test. Employers can test existing employees in the following circumstances:

  • Upon reasonable suspicion of an employee’s use of cannabis while engaged in the performance of their work responsibilities
  • Upon finding any observable signs of intoxication or impairment related to cannabis use
  • As part of an employer’s regular screening of current employees to determine use during an employee’s work hours
  • Random drug testing for employees in safety-sensitive positions
  • As part of an investigation following a work-related accident

Remedies and Compensation for Illegal Discrimination

Like other protected classes under the NJLAD, if a worker is subjected to employment discrimination because of their cannabis use they may be entitled to compensation. Possible remedies include injunctive relief, job reinstatement, back pay, compensatory damages related to pain and suffering or emotional distress, punitive damages, interest on lost wages, and reasonable attorney’s fees. Each of these remedies may require specific evidence, and not all of them may be available or appropriate in every case. In certain cases, an employer who violates the NJLAD may be fined up to $50,000 by the state, depending on the nature and number of the discrimination offenses.

For all claims under the NJLAD, discrimination victims must take action quickly. Complaints to the New Jersey Division of Civil Rights must be filed within 180 days of the alleged discriminatory act[3]. Claimants have two years from the date of the alleged discrimination to file a lawsuit[4].

The rules and regulations that the Cannabis Regulatory Commission will publish may change the procedure for pursuing complaints of workplace discrimination based on cannabis use. Consulting with an experienced employment attorney can help ensure that you understand the most up-to-date policies and procedural requirements and help you recover the compensation you deserve.

[1] 458 N.J. Super. 416 (N.J. Super. 2019)

[2] NJ A21

[3] N.J. Stat. Ann. §10:5-18

[4] N.J. Stat. Ann §10:5-12.11

 

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