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On September 9, 2022, the New Jersey Cannabis Regulatory Commission (“NJ-CRC”) issued further guidance to employers in connection with the Cannabis Regulatory Enforcement Assistance and Market Modernization Act (known as CREAMMA) signed into law on February 21, 2021. As New Jersey employers are well aware, under this law, “[n]o employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.” N.J. Stat. § 24:6I-52. Certain federal contractors are exempted from this law when compliance with the law would result in a provable adverse impact on an employer subject to the requirements of a federal contract. N.J. Stat. § 24:6I-52(b)(1)(b).
While employers are allowed to conduct drug screenings including in pre-employment, when there is a reasonable suspicion of marijuana use or impairment while on the job or following a work-related accident, CREAMMA prohibits employers from taking “any adverse action . . . solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid from engaging in conduct permitted under [CREAMMA].” N.J. Stat § 24:6I-52 (emphasis added). A bill introduced in January 2022, A890, is seeking to amend CREAMMA in order to provide further safe harbor to employers to take adverse action against employees under certain circumstances, including for employers at recognized critical infrastructure facilities and construction sites as well as “when the employee is a law enforcement officer and the duties of the employment require the possession of a firearm.”
The new guidance is interim in nature until the NJ-CRC is able to prescribe standards for Workplace Impairment Recognition Expert (“WIRE”) certification with which it is charged under CREAMMA. Similar to New York guidance, it sets forth the steps that the employer must have in place in order to demonstrate physical signs or other evidence of impairment sufficient to support an adverse employment action against an employee for suspected cannabis use or impairment during an employee’s prescribed work hours employers, which may include:
- having a designated staff member or third-party contractor sufficiently trained to recognize signs of impairment and to complete the suggested Reasonable Suspicion Observation Report or an employer-created equivalent thereof, and
- Establishing and following standard operating procedures in completing such a report.
In performing its impairment assessment, an employer may use a cognitive impairment test, a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment, and/or an ocular scan, as physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work.
Key Takeaways to NJ Employers
- Document, document, document. A positive drug screening test alone is insufficient to support an adverse employment action, at the pre-employment stage or during employment. However, a positive screening test plus evidence-based documentation of physical signs of impairment or use during work hours can be used as a basis for adverse action. Thus, establishing and following protocols and documenting all steps taken is critical in this process.
- Pre-employment screening while permitted is of little utility. CREAMMA protects potential job applicants for off-hours use of recreational marijuana; a positive result for tetrahydrocannabinol (THC) at the time of pre-employment screening is an insufficient reason to refuse to hire (an adverse action), absent visible and objective signs of impairment at the time of application.
- Zero-tolerance drug policies may still be permitted under certain circumstances. For certain federal contractors, including those subject Department of Transportation drug testing requirements may be permitted to maintain their existence screening and exclusion protocols.
The application of CREAMMA is currently being tested in New Jersey in the case captioned Zanetich v. Walmart Stores East, Inc., et al., 1:22-cv-05387-CPO-EAP, originally filed in state court in June of this year and successfully removed by the Defendants to the District of New Jersey in September. The complaint alleges that the named plaintiff’s job offer was rescinded prior to start of employment with the Defendants as an asset protection associate after testing positive for THC on a pre-employment drug screen in February 2022.
As always, Woltz & Folkinshteyn, P.C. welcomes your questions about this and any other employment concerns that you may have.