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Employment Law Notebook

Cannabis Retail Sales Starting in New Jersey. Expect Plenty of Workplace Questions

Now that adults in New Jersey will be able to start purchasing cannabis for recreational use on Thursday, many workplace rules regarding background checks, drug testing, and use of marijuana will have to change.  But delays in expected regulations regarding what employers can do to assess if employees/applicants are impaired  creates uncertainty for both employees and employers.

When sales begin Thursday, anyone over 21 will be able to purchase up to an ounce of cannabis.  Here are some key ways this will affect the workplace:

Background checks:

A decriminalization law passed in 2021 makes it unlawful for employers to refuse to hire a job applicant or to take any adverse action against a current employee solely because the individual was convicted or arrested for marijuana possession, distribution, use, or manufacture . Employers should stop searching for these types of offenses in background checks and/or must not make employment decisions based on marijuana related crimes.

Off-Duty Use/On-Duty Use/Impairment at Work:

The 2021 state law that enabled retail sales of cannabis, the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (“CREAMMA”) provides various workplace protections for users of recreational cannabis. For example, the law bars an employer from refusing to hire,  terminating or taking any other adverse action against an employee solely for using cannabis in their off-duty hours  or solely because an employee tests positive for cannabis through a drug test.  

While employers can test applicants and employees for cannabis to determine use of it during working hours,  they are prohibited from taking any adverse action against them solely on the basis of a positive test result unless the employer can also establish that the person was impaired while they are working or during work hours. The problem is how to determine impairment is an open question right now.

The state plans to but has not yet created standards for determining impairment by creating certifications for impairment experts who will determine whether an individual is actually impaired or merely has cannabis in their blood stream but is past being impaired. While we wait for the state to create these impairment standards, employers could face lawsuits from employees who are terminated because management believes they were impaired.

Employers can prohibit employees from consuming, selling, and distributing cannabis while they are working or during work hours and take action against them if they do so.

Given the prohibition on adverse actions linked solely to a positive test and off-duty use, it seems questionable how an employer can justify the need to test job applicants for marijuana.

Exceptions to Workplace Protections

There is an exception to the new restrictions under NJCREAMMA for employers with federal contracts or subject to federal requirements, such as DOT requirements.  If an employer would run the risk of losing such a contract or violating these requirements by following the new employer restrictions under NJCREAMMA, then employers are free to follow the federal requirements.