The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) signed into law by Governor Phil Murphy on February 22, 2021 brought new employment protections for job applicants and employees who lawfully use cannabis recreationally while not at work, namely, employees cannot be subject to an adverse employment action simply because a blood or urine test comes back positive for marijuana use. Prior to enactment of CREAMMA, protections in the workplace for those using marijuana was limited to those possessing a medical marijuana card pursuant to the Jake Honig Compassionate Use Medical Cannabis Act (the Honig Act). Under the Honig Act, it is “unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant with the Cannabis Regulatory Commission” (“Commission”). 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 in any terms, conditions, or privileges of employment.” N.J.S.A., 24:61-3. Now that CREAMMA is the law, employees in New Jersey can no longer be denied employment or otherwise subject to an adverse employment action solely for using marijuana recreationally outside of work. Put differently, a failed drug test for marijuana by itself is an insufficient reason under CREAMMA for taking an adverse employment action against an employee. This means an employer would have to establish that the employee engaged in some conduct prohibited under the law, such as using marijuana at work, or being under the influence of marijuana at work, or otherwise unlawfully possessing selling or transporting marijuana in the workplace or during work hours.
Importantly the protections provided by CREAMMA apply with respect to all employees regardless of their job classifications or the nature of their job duties and responsibilities, including employees who work in safety-sensitive job positions. Furthermore, while CREAMMA preserves an employer’s right to conduct drug testing of its workforce it places a new obligation on employers to have employees suspected of using cannabis to undergo a physical evaluation by a person who has successfully attained certification as a Workplace Impairment Recognition Expert (WIRE) permitting him/her to determine the employee’s level of impairment while engaged in performing job duties. However, because the Commission has yet to adopt standards for a WIRE certification program no physical evaluation of an employee being drug tested in accordance with CREAMMA is currently permitted.
A major failing of CREAMMA is found in the fact that it does not expressly provide a private right of action for violations of the law. This means it appears an employee subjected to an adverse employment action for testing positive for marijuana use would have to claim a violation of another employment law which does permit an employee to sue in court. For example, if an employee objected to being suspended by their employer for testing positive for marijuana because there was no evidence the employee used marijuana on the job or was under the influence of marijuana in the workplace, and then was fired for having done so, the employee maybe able to pursue a claim as a whistleblower under the New Jersey Conscientious Employee Protection Act (“CEPA”). CEPA is remedial legislation that, in relevant part, protects an employee from retaliation if he “[d]iscloses or threatens to disclose” to a supervisor or a public body an employer’s “activity, policy or practice” that the employee “reasonably believes” “is in violation of a law, or a rule or regulation promulgated pursuant to the law…” N.J.S.A. 34:19-3. A plaintiff in a CEPA case may receive compensation for lost pay and benefits, as well as mental distress damages. They can also win costs for the suit and attorney’s fees. Additionally, punitive damages, which are meant to punish the wrongdoer and deter them from any similar action in the future, are available when the employer has acted especially egregiously and/or outrageously. Damages available under CEPA are not capped by statute.