By: Ashley A. Smith, Esq. and Ty Hyderally, Esq.
April 21, 2022 marked the long awaited beginning of legal recreational marijuana sales in New Jersey for adults 21 and up. Amid the excitement, some important questions have arisen. “Will buying or consuming legal recreational marijuana create problems for me at work?
The answer…like many things in the legal world, it depends.
Under New Jersey’s Cannabis Regulatory, Enforcement, Assistance, and Marketplace Modernization Act (a.k.a., the CREAMM Act) an employer may make efforts to maintain a drug and alcohol-free workplace. However, an employer cannot fire someone or take other employment actions against them based on whether the employee or applicant uses cannabis.
Can I be asked to be drug tested?
A New Jersey employer may require employees or applicants to undergo drug testing as part of a pre-employment screening or regular screening of current employees. An employer may also require an employee to undergo a drug test “upon reasonable suspicion of an employee’s usage of a cannabis product in the performance of the employee’s work responsibilities, or upon finding any observable signs of intoxication related to the use of a cannabis item, or following a work-related accident subject to investigation by the employer (N.J.S. 24:6I-52(a)(1)).
Will I be fired if I test positive?
The law states that an employee must not be subject to adverse action by their employer, such as firing or demotion, solely because the employee has failed a marijuana drug test. In other words, an employer needs more than a positive marijuana drug test to terminate, demote, or take other adverse action against an employee.
The “something else” required is assessment by a Workplace Impairment Recognition Expert (or WIRE, for short). CREAMM provides that
the [Cannabis Regulatory] [C]ommission, in consultation with the Police Training Commission . . . shall prescribe standards for a Workplace Impairment Recognition Expert certification, to be issued to full- or part-time employees, or others contracted to perform services on behalf of an employer, based on education and training in detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance.
The problem? Well, the standards for WIRE certification haven’t been set yet.
The New Jersey Business & Industry Association (NJBIA) has called upon the CRC to take action to allow employers to better ensure workplace safety. The NJBIA asserts that, because the CRC has yet to adopt regulations to certify WIREs, employers are left in legal limbo – and, more importantly, without adequate tools to properly address workplace safety issues.
The current recommendation
As we await clarification on WIRE certification, employees who consume recreational cannabis should continue to exercise caution. Workers – especially those employed in dangerous occupations, such as working with hazardous chemicals or operating heavy machinery – should continue to take care to avoid impairment in the workplace for the safety of themselves and others.
En nuestra firma hablamos español. This blog is for informational purposes only. It does not constitute legal advice and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.