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Commission Issues Guidelines on New Jersey’s Recreational Cannabis Law, but Leaves Employment Issues Out

The New Jersey Legislature passed a law last year legalizing recreational cannabis. The governor signed it into law in February 2021. The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) legalizes the possession and use of cannabis by people who are at least 21 years old. It also clarifies some issues related to employment law and establishes standards for workplace drug testing. In August 2021, the ​​New Jersey Cannabis Regulatory Commission (NJCRC) issued guidelines on legal issues surrounding the personal use of cannabis. The guidelines do not address various employment issues, instead deferring them to a later date.

CREAMMA amends existing state law to include employment protections related to lawful cannabis use. Despite laws authorizing its use to varying degrees in most states, cannabis remains a Schedule I controlled substance under federal law. Many employers have continued to ban cannabis use by employees, even when they are not on the job, as part of broader “drug-free workplace” policies.

Earlier New Jersey cannabis laws legalizing its use did not provide any employment protection for individuals who used cannabis in compliance with the law, such as for medical purposes with a doctor’s prescription. Section 24:6I-52(a)(1), newly added by CREAMMA, bars employers from discriminating against employees based on both legal cannabis use and refusal to engage in legal cannabis use. They are also barred from discriminating against an employee because of “the presence of cannabinoid metabolites in the employee’s bodily fluid,” when this is the result of lawful conduct.

Subsection (b)(1)(a) allows employers to continue to “maintain a drug- and alcohol-free workplace.” An employer can discipline an employee for being drunk on the job, even though alcohol is legal. Employers can similarly prohibit employees from working while under the influence of cannabis. Merely testing for the presence of cannabis in an employee’s system, however, is no longer enough.

Subsection (a)(2) states that, in order to ensure compliance with the provisions regarding employment discrimination, employer-administered drug tests must include a Workplace Impairment Recognition Expert (WIRE). This is an individual trained “in detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance.” The WIRE must conduct a “physical examination” of an employee “to determine [their] state of impairment.” This is in addition to chemical testing of blood, saliva, or urine.

The law directs the NJCRC and the state’s Police Training Commission (PTC) to develop standards for certification and training of WIREs. The position is similar to drug recognition experts used by New Jersey police in suspected DWI cases, who are certified by the PTC.

The NJCRC issued a document entitled “Personal Use Cannabis Rules” earlier this month. The 160-page document addresses most of CREAMMA’s provisions, but it largely overlooks the employment provisions of § 24:6I-52. The rules offer no guidance to employers, for example, regarding disability discrimination.

The rules specifically defer guidance on drug testing in the workplace. Section 17:30-2.1(e) of the rules states that employers are not required to conduct physical evaluations during drug testing until the NJCRC and PTC have created standards for certification of WIREs.

The employment attorneys at the Resnick Law Group are available to answer your questions and discuss your concerns if you are involved in a dispute with an employer in New Jersey or New York. To schedule a confidential consultation to see how we can help you, please contact us today online, at 973-781-1204, or at 646-867-7997.

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