Employment Protections for Employees
Perhaps most notably, CREAMMA prohibits an employer from refusing to hire or from taking adverse employment action against an individual merely because that person engages in the recreational use of marijuana:
No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against an employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid from engaging in conduct permitted under [this law].
Interestingly, a prior version of the legislation would have expressly permitted employers to take adverse action against an individual if the employer had a “rational basis for doing so which [was] reasonably related to the employment, including the responsibilities of the employee or prospective employee.” However, this language was not included in the version of the bill passed by the Legislature and signed into law by Governor Murphy.
CREAMMA defines “adverse employment action” as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”
Notably, these prohibitions apply with respect to all employees, regardless of their job classifications or the nature of their job duties and responsibilities, including employees who work in safety-sensitive job positions. (Notably, several other states’ marijuana laws expressly exclude from its employment-related protections individuals working in safety-sensitive positions—e.g., “Nothing in this section shall apply to an employee whose employer deems that the employee works in a safety-sensitive position.” Unfortunately for New Jersey employers, CREAMMA contains no such carve-out.)