The New Jersey Legislature passed a law in 2021 that legalizes the recreational use of cannabis. The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) protects employees against adverse actions by their employers based on legal cannabis use. While the state has issued guidelines that address how employers should handle issues like impairment in the workplace, many aspects of the new law’s employment protections have yet to be tested in the courts. A New Jersey federal court recently ruled in favor of a plaintiff who has alleged wrongful termination by his employer in violation of CREAMMA, denying the defendant’s motion to dismiss.
The employment provisions of CREAMMA attempt to balance employees’ legal rights with employers’ interest in maintaining drug-free workplaces. Employers may not refuse to hire someone because they engage in legal cannabis use, nor may they fire them or take other adverse actions against them for that reason. Employees also have the right to refuse to engage in activities that are legal under CREAMMA. Drug testing by employers is allowed under certain circumstances. Employers may require that employees abstain from legal cannabis use and not be under the influence of cannabis during work hours. With some exceptions, though, they cannot prohibit lawful use outside of work.
The lawsuit described above arose from an automobile accident in late 2021 involving the plaintiff, who was driving a company vehicle at the time. According to the court, the plaintiff was not under the influence of cannabis or any other substance, nor did anyone suspect that he was. The employer required the plaintiff to submit to a drug test as a standard part of its safety policy. The plaintiff claims that, prior to the drug test, he alerted the employer about cannabis use outside of work about two weeks earlier. The test was positive for cannabis, resulting in the plaintiff”s immediate suspension.