On Monday, February 22, 2021, New Jersey Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). Among other things, CREAMMA legalizes and regulates marijuana use for those 21 and older and decriminalizes possession of limited amounts of marijuana. While regulations interpreting the law are still months away, employers in New Jersey should be thinking now about what this means for their drug policies and drug testing programs.
The new law includes substantial employment protections for people who engage in lawful behavior with respect to marijuana, which may prove challenging for employers because testing for THC – the main psychoactive compound in cannabis that produces the high sensation – remains an inexact science. Unlike alcohol, THC remains in the body’s system for an extended period of time, making it difficult to tell from test results alone if an employee is impaired at work (a terminable offense) or legally ingested cannabis the night before.
The good news for New Jersey employers is that, under CREAMMA, it is legal to ban “the use, . . . consumption, possession, transfer, display, transportation, sale or growth of cannabis or cannabis items in the workplace” and during work hours, and employers may forbid employees from coming to work under the influence of marijuana. In addition, employers may administer drug tests to employees and may be entitled to discipline or discharge an employee who used, possessed or was under the influence of marijuana while in the workplace or during work hours.
However – and this is where it gets complicated – an employer may not take adverse employment action against an individual solely because the individual failed a drug test for marijuana. Instead, a physical examination “conducted by an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof” must accompany an employer’s drug test for marijuana. What does that mean? Under CREAMMA, the Cannabis Regulatory Commission is required to prescribe “standards in regulation for a Workplace Impairment Recognition Expert (WIRE) certification, to be issued to full- or part-time employees, or others contracted to perform services on behalf of an employer, based on education and training in detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance, and for assisting in the investigation of workplace accidents.” Once the WIRE certification becomes available (likely not for several months), employers should be prepared to have their supervisors and/or management-level employees become certified.
Employers should keep in mind that marijuana remains an illegal drug under federal law, and CREAMMA therefore creates a carve-out for employers subject to DOT and federal contractor requirements regarding drug-free workplace policies and marijuana testing. In most other respects, however, it appears that an individual’s decision to use marijuana recreationally will now be afforded “protected class” status under New Jersey law.
Employers should consult with experienced human resources professionals and/or labor and employment counsel when in doubt about the appropriate course of action. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers’ Association
800-662-6238
*This Alert is provided for general informational purposes only and does not constitute legal advice.
