New Jersey Legalizes Recreational Cannabis

New Jersey has passed several laws legalizing recreational cannabis (a.k.a. marijuana). The laws include strong employment protections for off-duty use, making New Jersey the most employee-friendly state for cannabis use. Most of the employment provisions don’t kick in for at least a few months (the exact dates are still to be determined), but employers may want to start preparing now. The relevant provisions are described below, and we will provide additional details when regulations are released.

Ban-the-Cannabis-Box
Employers will not be able to ask for an employee’s or applicant’s cannabis criminal history and may not make employment decisions based solely on their cannabis criminal history, should they otherwise end up with that information. The effective date of this provision is unclear, so we recommend employers change any non-compliant practices immediately.

Non-Discrimination for Recreation Use
Employers will not be able to discriminate against employees or applicants for using recreational marijuana outside of work. In addition, employees can’t be disciplined or discharged solely because they test positive for THC (the active ingredient in cannabis). This protection will not apply until the yet-to-be-formed Cannabis Regulatory Commission issues regulations, which will be in August 2021 at the earliest.

Drug Testing for THC Gets Complicated

Employers may still have policies that prohibit employees from being impaired by, using, or possessing cannabis during work. Employers will still be able to drug test for cannabis but must include a physical evaluation to determine whether an employee is currently impaired. Since THC can stay in a person’s system for weeks, a positive drug test result only indicates past use, not impairment.

Additionally, the evaluation must be done by a person with a certification issued by the Cannabis Regulatory Commission. Employers and their employees will be able to obtain this certification or hire an outside consultant who has the certification.

Federal contractors may be exempt from the above restrictions if their compliance would cause a “provable adverse impact.” In that case, the contractor can modify the restriction to comply with federal law, rules, or regulations. If you are planning to do this, we recommend speaking with an attorney.
As with the non-discrimination provision, these testing requirements do not take effect until the new Cannabis Regulatory Commission issues regulations.

Medical Cannabis is Already Protected
Employers should also be aware that New Jersey has had a medical cannabis law with protections for employees for several years. Once the new regulations are released, these protections will become redundant. Until then, employers are still required to comply with employment protections for medical cannabis.

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