As the dust continues to settle on New Jersey’s legalization and decriminalization of cannabis, employers should take note of the laws’ significant employment implications. While forthcoming regulations will better define the contours of the new requirements, below are the most pressing takeaways for New Jersey employers.
- Require an applicant to reveal any arrest, charge, or conviction for certain types of marijuana offenses.
- Take any adverse action against an applicant solely based on any arrest, charge, or conviction for certain types of marijuana offenses.
- Refuse to hire or employ an individual who uses cannabis, unless failing to do so would make the employer violate a federal contract or cause it to lose federal funding.
- Take adverse action against applicants or employees who use cannabis, or solely because the applicant or employee tests positive for cannabinoid metabolites.
Under the new law, “adverse employment action” means refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.
Even with the new law, employers in New Jersey may still:
- Maintain drug- and alcohol-free workplaces.
- Decline to accommodate the use, possession, sale, or transfer of cannabis in the workplace.
- Prohibit intoxication or being under the influence during work hours.
- Require employees to undergo tests and evaluation to determine an employees’ state of impairment, including suspicion testing, post-accident testing, random testing, and pre-employment testing, as long as the test includes scientifically reliable testing of blood, urine, or saliva, and/or a physical evaluation to determine an employee’s state of impairment. The physical evaluation must be completed by state-certified “Workplace Impairment Recognition Expert.” (Forthcoming regulations should provide more information regarding certification).
- Use the results of drug tests when determining appropriate employment actions.
The legalization law creates a Cannabis Regulatory Commission to regulate the use, purchase, sale, and production of cannabis, among other functions. That Commission is tasked with providing the forthcoming regulations implementing the law, which are expected later this year. It is generally expected that legalized cannabis will not be available in New Jersey until at least 2022.
New Jersey employers can take proactive steps now. They can review their drug and alcohol testing policies to decide whether they will continue to test for marijuana and, if so, under what circumstances. Managers and supervisors should be trained to make compliant reasonable suspicion determinations and identify candidates to serve as Workplace Impairment Recognition Experts. Finally, anyone involved in hiring should be trained to understand the new rules regarding criminal history and consideration of cannabis use.