Updated May 14, 2021
BPHR’s Director Lisa Salcido, SPHR, SHRM-SCP provides answers to your pressing HR questions.
Question: How will New Jersey’s legalization of recreational cannabis activity affect the workplace?
Answer: On February 22, 2021, Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) and other cannabis bills into law that legalize and regulate cannabis use and possession for adults 21 years and older. NJCREAMMA provides employment protections for applicants and employees who use cannabis, and imposes significant burdens on employer drug testing practices.
NJCREAMMA prohibits discrimination, refusal to hire or employ, or making any adverse employment decisions solely because an individual uses or does not use cannabis products, has tested positive for cannabinoid metabolites, or admits to having engaged in conduct permitted under this law. Employees working in safety-related roles are not currently excluded from these protections, so employers must apply the law equally to all positions.
Effective May 23, 2021, employers are prohibited from inquiring about or basing any employment decision solely on the fact that an applicant or employee has been arrested for, charged with, or convicted of certain offenses involving marijuana or hashish. Exceptions apply for positions in law enforcement, corrections, the judiciary, homeland security, and emergency management. The law provides a penalty of up to $1,000 for the first violation, $5,000 for the second, and $10,000 for each subsequent violation.
Drug-Free Workplace Policy
Employers are permitted to enforce drug-free workplace policies that prohibit the use, possession, or sale of cannabis in the workplace, or driving while under the influence of cannabis during work hours.
Although drug testing is allowed in specified situations, employers cannot rescind a job offer or take an adverse action against an employee solely because of a positive cannabis test. The law’s approach to drug screening is a complicated two-part process summarized as “scientifically reliable objective testing methods and procedures,” plus a physical evaluation, conducted only by a certified Workplace Impairment Recognition Expert, to detect cannabis impairment.
Not all provisions of NJCREAMMA are effective immediately. The New Jersey Cannabis Regulatory Commission has 180 days from the date Murphy signed the law to provide rules expected to clarify regulations in the law regarding cannabis use and employment. Until then, New Jersey employers should update their discrimination and drug-free workplace policies, and review hiring and drug testing practices for compliance.
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DISCLAIMER: The material presented on this page is for informational purposes only and does not constitute legal advice or legal opinion.