After years of debate and an amendment to the New Jersey Constitution, in February 2021 Governor Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA), as well as related bills that largely decriminalized the use of marijuana and hashish (both of which are derived from a cannabis plant). The new laws come 11 years after New Jersey enacted legislation to legalize the medical use of cannabis, which is discussed in Pro Bono Partnership’s article, New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act: A Workplace Overview.
The new legislation, which exceeds 300 pages, is complex and will be clarified in regulations expected to be issued by the New Jersey Cannabis Regulatory Commission later this year. Once those regulations are issued, we will revise our article to reflect impact of the use of both medical and recreational cannabis on workplaces in New Jersey.
Here are some of the key takeaways for employers with respect to the recreational use of cannabis. Unless (a) otherwise provided by applicable federal or New Jersey law, or (b) compliance with the new laws would cause an employer to violate a federal contract or lose federal funding:
- Employers cannot take any adverse action against applicants for employment and employees based on their off-duty use of cannabis unless the use actually impairs their ability to perform their jobs while on duty.Employers are not required to permit or accommodate the use, being under the influence, possession, sale, or transfer of marijuana in the workplace.
Employers can continue to prohibit the use of cannabis or intoxication by employees during work hours and to insist on a drug- and alcohol-free workplace.
- When making employment decisions, employers are not permitted to rely solely on, or require an applicant to disclose, or take any adverse action against an applicant solely on the basis of, any arrest, charge, conviction, or adjudication of delinquency for certain types of marijuana and hashish criminal offenses. (As a general rule, New Jersey employers cannot rely on any arrest records, whether related to cannabis or not.)A rather surprising provision in one of the new laws provides that if a court determines that a person suffered discrimination in public or private housing, real property, or a place of public accommodation based on a prior arrest, charge, conviction, adjudication of delinquency for one of those criminal offenses and, as a result, the person’s employment was impacted, then the court is permitted to order the employer to reinstate the person to the same or equivalent position, with full fringe benefits and seniority rights, compensation for any lost wages and benefits, and the payment of reasonable costs and legal fees.
- Employers can still test for the use of cannabis, but they will need to comply with stringent new rules, as well as the requirements of the Honig Act.
- After the Cannabis Regulatory Commission issues its regulations, employers should revise their employment practices and policies as necessary in order to comply with NJCREAMMA and train supervisors about the requirements of NJCREAMMA and the Honig Act. If employers ask applicants to disclose their criminal history, then the employers should also revise their hiring practices, policies, and forms to expressly provide that arrests, charges, convictions, and adjudications of delinquency for criminal offenses related to marijuana and hashish must not be disclosed.
Several of our partner law firms have written articles about the new laws. We have collected a few of them here for your consideration.
- How New Jersey’s Recreational Marijuana Law Significantly Affects Workplace Drug Testing (Jackson Lewis)
- NJ Employers Need Special Expert’s Sign-Off Before Disciplining Based on a Positive Test for Cannabis (Levy Employment Law)
- New Jersey Recreational Marijuana Law Provides Significant Employment Protections to Marijuana Users (Seyfarth Shaw)
- Legalized Recreational Cannabis and the New Jersey Workplace – What Employers Need to Know (Morgan Lewis)
- Recreational Marijuana Is Legal in New Jersey: What Employers Need to Know (Ogletree Deakins)
If you have questions, please contact Christine Michele Duffy, Esq. at (973) 240-6955 x303.
This document is provided as a general informational service to volunteers, clients, and friends of Pro Bono Partnership. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does distribution of this document create an attorney-client relationship.