marijuana fi

Protection Against Employment Discrimination for Marijuana Use

By Thomas McKinney

In February of 2021, New Jersey Governor Murphy signed three key pieces of cannabis legislation. The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, the “Cannabis Act,” legalized the recreational use and possession of cannabis and cannabis products in New Jersey. There was also a decriminalization law that legalized possession of up to six ounces of cannabis. The decriminalization law also has important provisions for key criminal and justice reforms as they relate to marijuana offenses. Lastly, there was the clean-up bill concerning penalties for underage individuals committing cannabis offenses. The Cannabis Act and the decriminalization law also contain important provisions regarding employment law in New Jersey and provide protection against employment discrimination for marijuana use.

Protection Against Employment Discrimination for Marijuana Use

The Cannabis Act contains explicit provisions regarding employment law that New Jersey employers should be aware of. The Act includes nondiscrimination rules relating to the recreational use of cannabis. While the Cannabis Act expressly states that employers have no duty to accommodate cannabis use in the workplace, employers cannot penalize a job applicant or employee because of that person’s use or disuse of cannabis. An applicant cannot be denied hiring because of his or her use of cannabis nor can an employee be terminated because of recreational cannabis use. This nondiscrimination protection for cannabis users in New Jersey is significant as the majority of other states that have legalized recreational marijuana have no such express protection in place.

While there is nondiscrimination protection for cannabis users, the Cannabis Act does provide that employers do not need to tolerate nor permit recreational or medical marijuana use in the workplace. The Act details that employers retain the right to have a drug and alcohol-free workplace and are at liberty to put policies in place to safeguard against drug or alcohol use during work hours. The Cannabis Act dictates that employers can drug test employees:

  • Upon reasonable suspicion of workplace cannabis use
  • When investigating a work-related accident
  • Incident to pre-employment screening
  • In the course of regular screening of current employees
  • Randomly

The test results may be used in determining any appropriate employment action regarding an employee. The test, however, needs to yield scientifically reliable results by using objective testing methods and procedures. Furthermore, the test needs to be conducted by a certified Workplace Impairment Recognition Expert (WIRE).

Regarding the decriminalization law, there were other important employment provisions that employers need to be aware of. Section 15, in particular, should be noted as it establishes strict parameters regarding employer inquiries about a job applicant’s marijuana-related criminal history. The decriminalization law specifically provides that employers may not take any kind of adverse action against an applicant because they have been arrested, charged, convicted, or there has been an adjudication of delinquency that is related to the possession, distribution, or manufacturing of cannabis. The exception to this is for positions in law enforcement corrections, homeland security, emergency management, or the judiciary.

New Jersey Employment Law Attorneys

These cannabis laws mark significant changes in New Jersey employment law as it relates to recreational marijuana use as well as having a criminal history relating to marijuana. For more information on these significant legal changes, talk to the knowledgeable team at Castronovo & McKinney. Contact us today.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.