New Jersey and California are currently in the spotlight for their respective methods of protecting employees who use recreational marijuana.
Employers in New Jersey are getting some interim guidance on protections from the state’s Cannabis Regulatory Commission while California employers will have to deal with a new law that will protect recreational cannabis users.
Guidance emphasizes employer right to substance-free workplace
The New Jersey Cannabis Regulatory Commission issued interim guidance Sept. 9 on employment protections passed in 2021 for marijuana users. This guidance will remain in effect until the Commission publishes its standards for Workplace Impairment Recognition Expert (WIRE) certification.
This guidance details an employer’s right to maintain a substance-free workplace and offers “practical guidance” on how to determine if an employee is impaired during work hours.
The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) provides various employment protections for recreational marijuana users “and imposes strenuous requirements on New Jersey employers who conduct drug testing for the presence of cannabis in an individual’s system,” according to law firm Cole Schotz.
Specifically, under the act,
- employers are prohibited from refusing to hire or take adverse employment action against employees solely based on their use of recreational cannabis
- any cannabis testing conducted by employers must be based on scientifically reliable objective testing methods and procedures and must include a physical evaluation to determine an employee’s state of impairment, and
- the person conducting the physical evaluation must be certified as a WIRE.
However, the physical evaluation requirement was temporarily suspended since 2021 until the Commission develops the WIRE certification standards.
The Commission’s new guidance:
- reaffirms that NJCREAMMA prohibits employers from taking adverse employment actions against employees based solely on their use of cannabis or having cannabis metabolites in their system
- emphasizes that NJCREAMMA doesn’t interfere with an employer’s right to maintain and enforce a substance-free workplace
- permits employers to take adverse action against an employee who took a drug test that meets legal requirements and tests positive for cannabis use and when there is “evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours,” and
- offers suggestions to determine physical signs of impairment sufficient to support an adverse employment action against an employee for potential cannabis use or impairment during working hours.
Law doesn’t preempt state, federal laws requiring drug testing
While employers in New Jersey are getting some clarification on protections, those in California are being introduced to a new law providing similar protections to employees there, according to law firm Jackson Lewis.
California Governor Gavin Newsom signed bill AB 2188 into law Sept. 18, which forbids employers to discriminate against a person in hiring or termination based on:
- use of cannabis off the job and away from the workplace, except in the case of pre-employment drug screenings, or
- an employer-required drug screening test that found the person had non-psychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids.
Employers can still maintain a drug- and alcohol-free workplace and employees aren’t permitted to possess, be impaired or use cannabis on the job. The law doesn’t preempt state or federal laws that require drug testing for controlled substances as a condition of employment, to receive federal funding or licensing, or as a condition to enter into a federal contract.
Certain applicants and employees are also excepted from the protections, including employees in the construction industry, and applicants and employees in positions requiring a federal background investigation or clearance.
Employers can still refuse to hire an applicant based on a “scientifically valid preemployment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.”
Alternative tests include impairment tests that measure an individual against their own baseline performance, and tests that identify the presence of tetrahydrocannabinol, or THC, in bodily fluids.
California employers will have some time to prepare for this new law as it doesn’t go into effect until Jan. 1, 2024.