As a larger percentage of states allow for medicinal or recreational use of marijuana, employers are coming under more pressure to adjust their drug testing and hiring practices of marijuana users.
In New Jersey, NJ A21 — known as the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (NJCREAMMA) — was signed by the governor on February 22, 2021. The new law legalizes recreational marijuana.
It does not mean that the applicant/employee can come to work under the influence, but it does provide protection that the potential employee cannot be eliminated from consideration for a job or fired from a job because they use marijuana on their own time.
Under the new law, employers may still conduct numerous forms of drug testing for marijuana, including:
- Post-offer pre-employment – however, in the case of pre-employment, the law requires that a drug test includes both a “physical evaluation” and “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva.” The “physical evaluation” must be conducted by an individual certified to provide an opinion about an employee’s state of impairment, or lack of impairment, related to the use of marijuana.
- Reasonable suspicion of use at work
- Reasonable suspicion of impairment
- Post-accident
- Random
How This Law Affects Employers
Employers still have the right to maintain a drug-free workplace. However, the law appears to undermine a company’s ability for enforcement unless the impairment is outwardly detectable.
Although the requirements of the new law are effective immediately, they are not enforceable until the Cannabis Regulatory Commission has defined the standards for the “Workplace Impairment Recognition Expert” (WIRE). A Workplace Impairment Recognition Expert who must be trained to detect and identify an employee’s use or impairment from marijuana or other intoxicating substances and to assist in the investigation of workplace accidents.
Until those standards are in place, the law does not become operative therefore not enforceable. The Cannabis Regulatory Commission has 180 days after enactment of the NJCREAMMA or 45 days after appointment of the five members to the commission whichever is later.
Additionally, the NJCREAMMA decriminalizes many marijuana and hashish crimes. Employers are prohibited from inquiring about or basing any employment decision on the fact that an applicant or employee has been arrested for, charged with, or convicted of certain offenses involving marijuana or hashish. Employers that violate this law face civil penalties.
Five Diamond Screening, a Las Vegas-based background screening and drug testing partner focusing solely on the hospitality and leisure industries — including cannabis — can provide guidance on drug testing in all fifty (50) states and the various counties and communities that have existing laws and governance as it relates to cannabis use and best practices in hiring.
