On February 22, 2021, New Jersey Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) and other related bills into law which legalize and regulate recreational cannabis use and possession for adults over the age of 21. With the enactment of NJCREAMMA, New Jersey now prohibits employers from discriminating against employees for off-duty recreational marijuana use (or decision not to use). These requirements are effective immediately.

Prior to the enactment of NJCREAMMA, New Jersey employers were prohibited from discriminating against individuals who are certified to use medical marijuana and required to engage in the interactive process with employees who request accommodations for medical marijuana use. NJCREAMMA extends the discrimination prohibitions to recreational marijuana users and prohibits employers from refusing to hire, discharging, or taking “any adverse action against an employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.” In addition, these prohibitions extend to positive drug tests where solely cannabinoid metabolites are present in the employee’s system.

There are several vital limitations to this general anti-discrimination requirement:

  • Employers may continue to maintain drug- and alcohol-free workplaces, including prohibiting and disciplining employees for using, possessing, or being under the influence of marijuana at the workplace or during work hours.
  • Employers are not required to comply with the anti-discrimination provisions to the extent doing so would violate a federal contract.

Critically, NJCREAMMA does not have any exception for employees who are in safety-sensitive positions.

In addition, NJCREAMMA mandates certain requirements for drug testing procedures that must be used when determining whether an employer may take an adverse employment action against an employee for being under the influence of marijuana at work or during work hours. Specially, the employees must both: (1) test positive for cannabinoid metabolites as a result of a scientifically reliable drug test (e.g., saliva, urine, or blood tests); and (2) an individual who is certified as a Workplace Impairment Recognition Expert must conduct a physical evaluation of the employee and determine that they are under the influence of marijuana. If both of these requirements are not met, an employer may not take any adverse action against an employee based on suspicions that the employee is under the influence of marijuana at work or during work hours. The New Jersey Cannabis Regulatory Commission is developing a training program for employees to be certified as a Workplace Impairment Recognition Expert, but has not advised when this will be available.

Further, NJCREAMMA continues to permit employers to conduct drug tests for marijuana under the following scenarios:

  • Pre-employment screenings, random drug testing, and other routine testing conducted by the employer;
  • If the employer has reasonable suspicion to believe the employee is under the influence of marijuana at work or during work hours; and
  • Following a work-related accident.

While employers are still permitted to test for marijuana, they must still comply with the anti-discrimination requirements above when determining whether or not take any adverse action against an employee as a result of a positive drug test.

In light of the expansion of employees’ rights under NJCREAMMA, all New Jersey employers must reevaluate their drug and alcohol use and testing policies, practices, and procedures to ensure they are in compliance.