The Legalization Of Recreational Marijuana And What Employers Need To Know Now

On February 22, 2021, Governor Murphy signed three bills into law legalizing adult-use of cannabis and decriminalizing marijuana possession in New Jersey. The first, the New Jersey Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act (“CREAMMA”) removes cannabis as a Schedule I drug and legalizes personal cannabis use for adults aged 21 and over. The second bill, A1897, decriminalizes possession of small amounts of marijuana and lessens the penalties for its distribution. The third bill, S3454, clarifies provisions regarding cannabis and marijuana use and possession for individuals under the age of 21. Employers in New Jersey should be aware of the significant employment implications that these laws carry.

Under CREAMMA, an employer is prohibited from taking any adverse action against an employee or applicant as a result of the employee’s cannabis use or nonuse, including refusal to hire, discharge, or any action with respect to compensation, terms, conditions, or other employment privileges. This prohibition applies to all employees regardless of the nature of the job, including employees who work in safety-sensitive positions.

Similarly, under section 15 of the decriminalization law, “an employer shall not be permitted to rely solely on, or require any applicant to disclose, 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 … marijuana.” Section 15 does not apply when the employment sought or being considered is for a position in law enforcement, corrections, the judiciary, homeland security, or emergency management. In addition, the language “to rely solely on” suggests that employers have certain discretion to consider an employee’s marijuana-related history when making employment decisions, provided that it is not the sole factor in doing so.

Nevertheless, CREAMMA affirms an employer’s right to maintain a drug-free workplace. As such, employers can prohibit employees from using, consuming, being under the influence of, or possessing cannabis or cannabis items in the workplace or during work hours. For an employer subject to federal contract requirements, if compliance with CREAMMA results in a “provable adverse impact” on the employer, then the employer may revise employee policies consistent with federal law, which presently prohibits cannabis use and possession.

Under CREAMMA, an employer may require an employee or applicant to undergo a drug test if (1) there exists reasonable suspicion of an employee’s cannabis use while engaged in the performance of the employee’s work responsibilities; (2) there are observable signs of intoxication related to cannabis use; or (3) there is a work-related accident subject to an investigation by the employer. In addition, employers may adopt random drug testing, pre-employment-screening, or regular screening of current employees to determine if cannabis is being used during the employee’s work hours.

Should you have any questions about these new laws and how they could impact your work force, please contact the employment lawyers at Brown & Connery, LLP.