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New Jersey’s Recreational Cannabis Law Includes Employment Protections

New Jersey Governor Phil Murphy signed a bill into law in February 2021 that creates a legal framework for the recreational use of cannabis by adults in the state. Voters paved the way for the new law when they approved Public Question 1 by a substantial margin on Election Day in 2020. The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) establishes standards for licensing businesses to distribute and sell marijuana products for recreational use. It directs the New Jersey Cannabis Regulatory Commission (CRC) to work out the details through regulations. Medical marijuana has been legal in New Jersey since 2009, but the law was unclear about employee protections until the state legislature amended it in 2019. CREAMMA includes explicit protections against “adverse actions” by employers based on activity that is now legal. If you feel you’ve been treated unfairly by your employer over use of cannabis, please contact a New Jersey employment discrimination lawyer today.

The Compassionate Use Medical Marijuana Act (CUMMA) established a system for the production, distribution, sale, and possession of small amounts of marijuana for medical use under a doctor’s supervision. Section 14 of the law stated that nothing in the law “shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.” In early 2020, the New Jersey Supreme Court held that, despite this language, a person using medical marijuana in compliance with CUMMA could assert a claim for disability discrimination under the New Jersey Law Against Discrimination (NJLAD).

The New Jersey Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA) in 2019, after the events that were the subject of the 2020 state supreme court ruling. CUMCA removed the language in § 14 about not requiring employers to accommodate medical cannabis use. It bars employers from discriminating against employees because they are registered medical marijuana users. It does not bar workplace drug testing, but states that employees who test positive for cannabis must have an opportunity to produce a prescription.

Section 48 of CREAMMA addresses employee rights. It states that employers may not discriminate against employees “because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.” They also may not “take any adverse action” against an employee who tests positive for “cannabinoid metabolites,” provided that their presence is due to activity permitted by this law.

Employers are allowed to maintain drug-free workplaces. They may conduct random drug tests, and they may test employees who they reasonably suspect have used or are under the influence of cannabis while on the job. CREAMMA requires a “physical examination” conducted by a certified drug recognition expert (DRE). This is a person trained to identify the effects of different drugs on people. Police departments often use DREs when investigating suspected offenses like DWI. The law directs the CRC to create a program for certifying people as “Workplace Impairment Recognition Experts.”

Federal law still treats marijuana as a Schedule I controlled substance. Because of this, CREAMMA does not bar federal contractors from maintaining employment policies that are consistent with federal law.

The employment lawyers at the Resnick Law Group are here to help if you are involved in a dispute with your employer in New Jersey or New York. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation with a member of our team.

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