Getting Into the Weeds: What the Legalization of Recreational Cannabis Means for New Jersey Employers – JD Supra

New Jersey recently joined a growing number of states and territories — including Alaska, Arizona, Colorado, California, Washington, D.C., Illinois, Maine, Massachusetts, Montana, Nevada, Oregon, South Dakota, Vermont and Washington — legalizing recreational marijuana or cannabis. New Jersey Gov. Phil Murphy enacted the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) on February 22, 2021 — legalizing the recreational use of cannabis for adults ages 21 and older — after New Jersey voters overwhelmingly passed a ballot initiative last November. The law comes with new employment protections for off-duty cannabis users that will significantly change how employers screen and conduct drug testing of job applicants and employees.

Expanded Employment Protections to Recreational Cannabis Users

Most significant, under the new law, employees and job applicants who lawfully use recreational cannabis off premises and during non-working hours are now expressly protected from discrimination. Under CREAMMA, “[n]o employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any 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.” This affords employees a new protection not previously available under New Jersey law.

How Will This Impact Drug Testing?

Employers are still permitted to conduct workplace drug testing in accordance with state law. Covered reasons include:

Pre-employment screening Reasonable suspicion of use or impairment while working Post-accident testing Random testing for safety-sensitive positions

However, the new law clarifies that such testing must include scientifically reliable objective testing methods, such as blood, urine or saliva, and must include a physical examination to determine the employee’s level of impairment. The physical evaluation must be conducted by an individual certified to opine on the employee’s state of impairment

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