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On April 25, 2023, in Henson v. Daimler Truck North America LLC, Civil Case No. 22-cv-6479 (RBK/MJS), United States District Judge Robert B. Kugler ruled that the wrongful termination suit filed by an employee who was fired after testing positive for cannabis may proceed. Judge Kugler, however, determined that the New Jersey Conscientious Employee Protection Act (“CEPA”) whistleblower claim should be dismissed due to the lack of a causal nexus between the employee’s communications regarding New Jersey drug testing law and his firing.
A positive drug test combined with documented signs of impairment might be enough for an employer to fire or reprimand a worker who is high on the job, according to guidelines released Friday by the state panel overseeing cannabis.
But a scientifically reliable test showing cannabis in the worker’s body on its own is insufficient to support adverse employment action, the guidelines say.
The new law doesn’t just legalize adult recreational cannabis, it also limits an employer’s right to take employment actions against workers who fail a cannabis drug test. Testing must be performed by certified Workplace Impairment Recognition Experts (WIREs) who are also required to do a physical exam to determine impairment. A failed cannabis drug test alone is not enough to fire an employee.
Less than a month after New Jersey legalized weed, the state is already considering a host of changes pressed for by different interests in the Garden State's quickly expanding marijuana universe.
The changes include scrapping a provision barring police officers from contacting parents of minors caught with marijuana on a first offense. Police officers, joined by parents and elected officials, have argued it unfairly binds the hands of law enforcement and leaves parents in the dark.
On February 22, 2021, Governor Philip Murphy signed into law a trio of bills that collectively legalize adult use of recreational cannabis in the State of New Jersey. The legalization of cannabis, more commonly referred to as marijuana, will have a significant impact on workplaces and institutions of higher education across the state of New Jersey. Employers should contact legal counsel for guidance on revising their workplace policies to comply with the new law and ensure a safe and healthy working environment.
Employer Drug-Free Workplace Provisions. The Act continues certain fundamental employer prerogatives and rights, expressly providing:
New Rules for Drug Testing
Employers may continue to maintain drug-free workplaces, including prohibiting the possession and consumption of cannabis as well as intoxication during work hours. But an employer may only require an employee to undergo a “drug test” if:
(i) the employer reasonably suspects the employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities;
(ii) there are observable signs of intoxication related to usage of a cannabis item;
The recreational marijuana law has several provisions that affect employers:
On February 22, 2021, New Jersey Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). Among other things, the 240-page measure legalizes the recreational use of marijuana for adults age 21 and older and—unfortunately for employers—places significant burdens on companies doing business in New Jersey with respect to marijuana and the workplace.
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:
