New Jersey employers continue to remain without meaningful guidance on the issue of how they may legally maintain a drug-free workplace. On February 22, 2021, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”) was signed into law. The law legalized the recreational use of marijuana for individuals 21 years of age and older and laid the foundation for the operation of marijuana growing and distribution businesses in New Jersey. Recently, the newly-formed New Jersey Cannabis Regulatory Commission (CRC) published its long-awaited Initial Rules (“Rules”) for enforcing and clarifying CREAMMA. Unfortunately, the Rules did little to clarify the current employment landscape and instead, left employers across the Garden State in a lurch with respect to disallowing employee use of marijuana off-duty—including for those employees in safety-sensitive positions.
CREAMMA is not an employment law but includes language prohibiting employers from refusing to hire applicants because they do or do not consume marijuana or solely due to the presence of the drug’s metabolites in their system (e.g., following a drug test). The law essentially creates a new protected class under the New Jersey Law Against Discrimination (“LAD”): those who consume marijuana recreationally or medically outside of work hours.
The relevant portion of CREAMMA and the Rules provides that employers are not prohibited from taking an adverse employment action against an employee who is under the influence of marijuana at work. But to legally take an adverse employment action, such as terminating the worker, the employer must have a positive drug screen and a physical evaluation by a person certified as a Workplace Impairment Recognition Expert (“WIRE”). The WIRE will be a person who has completed a course to be offered by the Police Training Commission. CREAMMA and its Rules are silent on this training course, and until more guidance is provided, the physical evaluation portion of the law is not yet in effect.
The same day CREAMMA was signed, another related law was signed (P.L. 2021 c. 19 / A1897—the law does not have a formal name like CREAMMA). This law provides, that “An employer shall not be permitted to, when making an employment decision, rely solely on, or require any applicant to disclose or reveal, or take any adverse action against any applicant for employment solely on the basis of, any arrest, charge, conviction, or adjudication of delinquency, for manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish. . .” Put another way, employers may no longer terminate or refuse to hire an employee solely based on most marijuana-related offenses. This change coincides with the state’s mass expungement of such offenses throughout the second half of 2021. The sole penalty for violating this law, unlike CREAMMA, is a $1,000 fine from the Department of Labor (with larger fines for subsequent violations), and the applicant may not sue an employer under this law.
CREAMMA will require changes in New Jersey workplaces and necessitate updating employment policies and practices. Employers that conduct drug testing or background checks should revisit their policies to ensure compliance and seek counsel to navigate these issues. It is important to train human resources, legal, compliance and other individuals who are involved in making employment decisions or implementing policies.
Until there is more guidance, there will be challenges and areas of ambiguity for New Jersey employers.
How can Frier Levitt help my practice?
At Frier Levitt, we stay on the cutting edge of legal guidance in this rapidly-changing field of law and are well-equipped to provide advice and counsel tailored to each client’s unique situation and needs. Whether your business is hiring employees, looking to maintain its relationship with existing employees, or wants to ensure its policies and procedures remain compliant with these new laws, Frier Levitt attorneys can provide the necessary guidance to keep you in compliance. Call Frier Levitt today to see how we can help you navigate your business’ employment practices.
