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Can I Be Fired for Smoking Cannabis Recreationally in New Jersey?

Posted by Jamison Mark on Sep 9, 2021 2:14:54 PM

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New Jersey has been a pioneer in changing the landscape of U.S. cannabis laws. In 2010, the state passed the New Jersey Compassionate Use Medical Marijuana Act[1] (CUMMA), which allowed New Jersey residents suffering from a debilitating medical condition to use medical cannabis. Then, in February 2021, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act[2] (CREAMMA) took effect, legalizing recreational cannabis for all adults.

Court decisions interpreting CUMMA, including Wild v. Carriage House LP,[1] made workers who use cannabis for medical conditions a protected class under the New Jersey Law Against Discrimination (NJLAD). Because of this status, an employer cannot fire, refuse to hire, demote, or take other adverse employment action against a current or potential employee based solely on their status as a registered medical cannabis patient. Once CREAMMA took effect, however, this protection extended to all recreational users of cannabis. So, does this mean you can’t be fired for using recreational cannabis?

 

The NJLAD’s Protections Against Employment Discrimination

 

The New Jersey Law Against Discrimination[2] first took effect in 1945. Since then, it has been expanded, modified, and interpreted many times by the legislature and the court to achieve its goal of ending unfair discrimination. In the workplace, NJLAD prohibits discrimination in all aspects of employment, including hiring, firing, compensation, terms and conditions of employment, retirement, benefits, scheduling, promotion, advancement, and more. An employer cannot take action against any employee or potential employee for reasons based on a protected characteristic; these protected characteristics include race, national origin, age, disability, religion or creed, marital status, gender identity, sexual orientation, genetic information, and military service obligation.

 

Sections 47 and 48 of CREAMMA expressly prohibit an employer from taking any adverse employment action against or denying any right or privilege to an individual because of that individual’s use of cannabis or the presence of cannabinoid metabolites in their system.

 

Adverse employment action means

  • Refusing to hire or employ an individual
  • Barring or terminating an individual from employment
  • Laying off or requiring an individual to retire from employment
  • Taking disciplinary action against an individual
  • Discriminating against an individual in compensation or in any terms, conditions, benefits, or privileges of employment

 

However, like most laws, there are exceptions.

 

Drug-Free Workplace Policies and Workplace Drug Testing

 

Employers may still conduct pre-employment drug testing on applicants, although they cannot base hiring decisions solely on the results of that test. New Jersey courts have not yet addressed whether it may be one of several factors considered when determining whether to offer employment to a candidate.

 

This does not mean that employers must allow cannabis use in the workplace. Employers may continue to enforce “drug- and alcohol-free workplace” policies that bar the use or possession of cannabis or cannabis products (and other drugs) on an employer’s premises or during work hours. They can also prohibit employees from being under the influence of cannabis in the workplace or during work hours:

 

Nothing in [this law] requires an employer to amend or repeal, or affect, restrict or preempt the rights and obligations of employers to maintain a drug- and alcohol-free workplace or require an employer to permit or accommodate the use, consumption, being under the influence, possession, transfer, display, transportation, sale, or growth of cannabis or cannabis items in the workplace, or to affect the ability of employers to have policies prohibiting use of cannabis items or intoxication by employees during work hours. Section 48(b)

 

CREMMA allows an employer to conduct drug testing in the workplace in the following circumstances:

  • upon reasonable suspicion of an employee’s use of cannabis while engaged in the performance of their work responsibilities
  • upon finding any observable signs of intoxication or impairment related to cannabis use
  • as part of an employer’s regular screening of current employees to determine use during an employee’s work hours
  • random drug testing for employees in safety-sensitive positions
  • as part of an investigation following a work-related accident

 

Unfortunately, current tests for cannabinoids and cannabis residue are unable to reliably determine the time of an individual’s consumption. This makes it difficult to establish with scientific reliability whether an individual is under the influence while at work (which may be prohibited) or is showing evidence of prior, legal use at a permissible time and place.

 

In an effort to provide a solution to this potential contradiction, CREAMMA requires that after a scientifically valid drug screening procedure (e.g., saliva, urine, or blood tests) comes back positive for cannabinoid metabolites, a certified Workplace Impairment Recognition Expert (WIRE) should conduct a physical evaluation of the employee to determine whether the employee is under the influence or impaired. Unfortunately, the Cannabis Regulatory Commission (the new agency tasked with drafting and implementing regulations for the sale and use of recreational cannabis) has not yet developed standards for WIRE certification. Because WIRE experts do not yet exist, the law does not currently require this additional examination. This leaves a confusing ambiguity for workers who test positive but deny workplace use.

 

Exceptions for Federal Employers or Contractors

 

Because the federal government has continued to consider cannabis a Schedule I prohibited drug, contractors who do business with federal agencies or receive federal compensation are generally required to prohibit its use. CREAMMA allows employers who are subject to federal requirements to “revise their employee prohibitions consistent with federal law, rules, and regulations” (that is, to prohibit the use of cannabis by their workers) if compliance with the Act would result in “a provable adverse impact” (like the loss of a contract). Thus, if your New Jersey employer works on federal contracts or otherwise does business with the federal government, CREAMMA may not protect you from being fired for cannabis use even outside of the workplace.

 

A Changing Landscape of Rules and Regulations

 

The Cannabis Regulatory Commission (CRC) recently implemented its first set of rules and regulations governing the personal use of recreational cannabis in New Jersey[3]. These became effective on August 19, 2021. Ultimately, the CRC will likely provide more specific direction for employers and employees governing the use of cannabis in the workplace and the protections afforded to employees who use cannabis. Until then, if you have a concern about your workplace situation, have been the victim of employment discrimination related to your cannabis use, or have any other concerns about your workplace rights, contact an experienced New Jersey employment lawyer today.

 

Discrimination victims must take action quickly; complaints to the New Jersey Division of Civil Rights must be filed within 180 days of the alleged discriminatory act, and claimants have two years from the date of the alleged discrimination to file a lawsuit. However, changes to CREAMMA and the CRC rules may change the filing requirements and time limits. Don’t wait to consult with an attorney. Your rights may be on the line.

 

[1] 458 N.J. Super. 416 (N.J. Super. 2019)

[2] N.J. Stat. Ann. §§ 10:5-1 et seq.

[3] N.J.A.C. 17:30

Topics: Employment Law, Wrongful Termination

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