Marijuana - New Jersey

Medical marijuana

Under the Jake Honig Compassionate Use Medical Cannabis Act, employers are prohibited from taking a negative employment action against a person who uses medical marijuana based on that person’s status as a medical marijuana patient.

An adverse employment action is defined as refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or any terms, conditions, or privileges of employment.

Employers may take adverse action if the employer’s accommodation of medical marijuana use would violate federal law or result in the loss of a federal contract or federal funding.

Employers may prohibit or take adverse action for the possession or use of intoxicating substances during work hours or on workplace premises outside of work hours.

Testing

An employer must follow specific procedures when an employee tests positive for marijuana. An employer must offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result. An employer must provide written notice of the right to explain to the employee or job applicant.

An employee or job applicant has three working days after receiving this notice to submit information to explain the positive test result. An employee or applicant may request a confirmatory retest of the original sample, at the expense of the employee or job applicant. As part of an explanation for a positive test result, authorization for medical cannabis or a registry identification card may be presented.

Prohibitions

The act does not permit a person to operate a vehicle, aircraft, railroad train, stationary heavy equipment, or vessel while under the influence of cannabis.

Marijuana cannot be smoked in any place where smoking is prohibited under New Jersey law.

Workers’ compensation

The state’s supreme court ruled in 2021 that medical marijuana is a reimbursable expense that an employer and their workers’ compensation carrier must cover. The employer argued several points, including the fact that marijuana is still illegal under federal law. The court, however, rejected the arguments and ruled in the injured employee’s favor.

Court rulings

Courts have issued rulings on medical marijuana use. Court rulings include:

Cotto v. Ardagh Glass Packing (August 10, 2018)

The court ruled that the New Jersey Compassionate Use Medical Marijuana Act and the New Jersey Law Against Discrimination do not require private employers to waive drug tests as an accommodation for users of medical marijuana.

Justin Wild v. Carriage Funeral Holdings, Supreme Court of New Jersey, March 10, 2020

The New Jersey Supreme Court ruled that an employee may make a claim under the New Jersey Law Against Discrimination based on disability discrimination or failure to accommodate an employee for the use of medical marijuana.

The case involved a funeral director who was fired after his employer learned he was using medical marijuana. The employee was injured when a vehicle he was driving was struck by another vehicle that ran a stop sign. His employer required a drug test, and the employee was later fired for not telling his employer that he was taking medication which might adversely affect his ability to perform his job duties.

The employee sued, claiming that he was protected by the state's Law Against Discrimination and was unlawfully discriminated against for his use of medical marijuana, which he used as part of cancer treatment.

The employer said that the case should be dismissed because nothing in the act requires an employer to accommodate a medical marijuana user.

The court found, however, that simply because the Compassionate Use Act does not “require” an accommodation does not mean that a requirement might not be imposed by the state’s anti-discrimination law. The state’s medical marijuana law has an impact on employment rights, the court noted, and ruled that the case could move forward.

Recreational marijuana

New Jersey’s recreational marijuana law, the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA), provides employee protections for off-duty use of the drug but gives employers the right to prohibit marijuana use at work and drug test for marijuana. The law contains anti-discrimination protections for job applicants and employees, but private citizens cannot bring a lawsuit against an employer alleging employment discrimination because of cannabis use.

Employer protections

Under New Jersey's recreational marijuana law, an employer may:

• Maintain a drug- and alcohol-free workplace,
• Prohibit the use, consumption, being under the influence, possession, transfer, display, transportation, sale, or growth of marijuana or marijuana items in the workplace,
• Prohibit the use of marijuana items or intoxication by marijuana during work hours.

Private citizens cannot bring a private right of action against an employer alleging employment discrimination because of cannabis use. A U.S. appeals court confirmed that the state’s cannabis law does not imply that a private citizen may bring a civil action against an employer to enforce the discrimination provisions in the state's cannabis law. The state’s Cannabis Regulation Commission has not taken formal action against employers who violate CREAMMA’s employment protections.

In addition, marijuana cannot be smoked in any place where the smoking of tobacco is prohibited. Driving under the influence of cannabis is prohibited under New Jersey law.

Employee protections

Employers may not refuse to hire, discharge or take an adverse action against an employee because an individual uses marijuana. An employee shall not be subject to any adverse action by an employer solely due to a positive drug test for cannabis. An employer may take an adverse action based on a positive drug test for marijuana if certain conditions are met.

Testing for marijuana

A drug test may be done randomly or as part of a pre-employment screening. Post-accident and reasonable suspicion testing is allowed. Testing may be conducted as part of regular screening of current employees to determine use during an employee’s work hours.

A drug test needs to include scientifically reliable objective testing methods and procedures. This includes testing of blood, urine, or saliva.

An employer may not take action based on a positive drug test for recreational marijuana use unless:

• There is reasonable suspicion that an employee used marijuana while working,
• The employee is showing signs of intoxication from marijuana use,
• The test is done because of a work-related accident requiring investigation.

When the appropriate steps are taken, the drug test result may be used to take a negative employment action including dismissal, suspension, demotion, or other disciplinary action.

Guidance on workplace impairment from the New Jersey Regulatory Commission indicates that employers should establish evidence-based protocols for documenting observed behavior and physical signs of impairment. A drug test can then be used to verify whether or not an individual has used an impairing substance in recent history. While a positive drug test alone is insufficient to support an adverse employment action for marijuana use, a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action.

State law requires an impairment evaluation to be conducted by a Workplace Impairment Recognition Expert (WIRE). Until WIRE standards are available, the state has issued guidance for employers. To demonstrate physical signs or other evidence of impairment to support an adverse employment action against an employee suspected of cannabis use or impairment during work hours, state guidance notes that employers may:

• Designate an interim staff member to assist with making determinations of suspected cannabis use during an employee’s prescribed work hours. This employee should be sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report and may be a third-party contractor.
• Utilize a uniform Reasonable Suspicion Observation Report that documents the behavior, physical signs, and evidence that support the employer’s determination that an employee is reasonably suspected of being under the influence during an employee’s prescribed work hours.

The state also indicates that an employer should establish a standard operating procedure for completing a report. This should involve:

• The employee’s manager or supervisor or an employee at the manager or supervisor level; and
• A staff member that has been designated to assist with determining whether an employee is reasonably suspected of being impaired during an employee’s prescribed work hours, or a second manager or supervisor.

An employer may also 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.

Federal contractors

If the state’s marijuana law would bring a provable adverse impact on an employer subject to the requirements of a federal contract, the employer may revise employee prohibitions to be consistent with federal law.

Court Case

Erick Zanetich v. Wal-Mart Stores East, Inc. et al., U.S. Third Circuit Court of Appeals, December 9, 2024.

A U.S. appeals has court found that New Jersey’s marijuana law does not allow private citizens to bring a civil lawsuit against an employer to enforce the law’s discrimination provisions.

In this case, an individual applied for an asset protection job at a retail store in New Jersey. The applicant was offered a job contingent on taking and passing a drug test, as required by company policy. After the applicant tested positive for marijuana, the job offer was rescinded, and the applicant sued, claiming that:

• The retailer discriminated against him for using cannabis;
• The job offer was wrongly rescinded, violating public policy

The court, however, found that the state’s cannabis law does not imply that an individual can bring a private right of action against an employer. The law protects both cannabis users and non-users, the court found, and the applicant could not show that it provided a special benefit for applicants who test positive for cannabis use. “By protecting both users and non-users of cannabis, this provision sweeps very broadly, as every member of the public is either a cannabis user or a cannabis non-user. And without an unmistakable textual focus on cannabis users in particular, this provision does not confer a special benefit on any particular class,” the court said.

The court also noted that the state legislature did not expressly create a private remedy in the law.

In addition, the court found that the state’s marijuana law protects employees from adverse employment actions based only on a positive drug test for cannabis, but does not protect prospective employees. As a job applicant, the individual in this case was not protected from an adverse action because of a positive cannabis test result.