Employment Protections under NJCREAMMA
Under NJCREAMMA, employers cannot refuse to hire any person or discharge or take any adverse action against an employee (with respect to compensation or any other terms and conditions of employment) because they do, or do not, use cannabis products. Moreover, the pending law explicitly protects employees from being subject to any adverse employment action solely because they have tested positive for cannabinoid metabolites, or admit to have engaged in the use of marijuana or marijuana products under the law. At the same time, the statute affirms employers’ rights to maintain a drug- and alcohol-free workplace, to prohibit employees from using, consuming, being under the influence of, or possessing marijuana or marijuana products in the workplace or during work hours, but provides little to no guidance on how to do so while complying with the new law. The statute does not recognize any exception that would allow an employer to bar off-duty marijuana use by employees in safety-sensitive positions, so employers are concerned to know how, if at all, marijuana use by workers in these sensitive roles can be considered when making employment decisions. The statute does provide that if compliance with the law results in a “provable adverse impact on an employer subject to the requirements of a federal contract,” then the employer may enact policies in a manner that is consistent with federal law, rules and regulations. As such, employers that are parties to federal contracts or that may lose federal funding for employing individuals who use marijuana (as it is still illegal under federal law), are exempt from certain requirements.
Drug Testing under NJCREAMMA
Under NJCREAMMA, employers may require employees to submit to drug tests under the following circumstances: (a) upon suspicion of cannabis use while the employee is engaged in the performance of their work responsibilities; (b) upon finding any observable signs of intoxication related to usage of a cannabis item; or (c) following a work-related accident (subject to investigation by the employer). Employers may also utilize random drug testing, pre-employment screening, or routine testing of current employees to determine cannabis use during an employee’s working hours. However, it is unclear how an employer may act upon test results, if it cannot act solely on the basis of a positive drug test. In other states that have limited an employer’s right to act solely based on a workers’ medical use of marijuana, the fact of the marijuana use may be offset when coupled with some other factor, such as safety concerns, impairment during the work day, or involvement in an accident. It is hoped the regulations will provide further clarification.
