New Jersey Governor Phil Murphy has signed Assembly Bill 21, also known as the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, or "the Act." While the Act is effective immediately, the employment-related protections for recreational marijuana users do not become operative until initial rules and regulations are adopted.
Background:
On November 3, 2020, voters in New Jersey approved a ballot measure legalizing recreational marijuana. In February 2021, Governor Phil Murphy signed Assembly Bill 21 into law implementing the recreational marijuana measure.
Assembly Bill 21:
Among other things, the Act prohibits New Jersey employers from taking any adverse action, including terminating, discriminating against, or refusing to hire or employ an individual who uses cannabis during non-work hours, unless it would violate a federal contract or cause the employer to lose federal funding.
Workplace Use Prohibited:
The Act does not require employers to permit employees to use or possess marijuana during work hours or to work while under the influence. Employers are not required to accommodate the usage, possession, selling, or transferring of cannabis at work. Further, the Act does not restrict employers from maintaining a drug- and alcohol-free workplace.
The Commission:
The Act created a Commission, which among other things, will train Workplace Impairment Recognition Experts to detect and identify workplace use or impairment and will help investigate workplace accidents. Expect further guidance in this area.
Cannabis Testing:
While employers are prohibited from taking adverse actions against an applicant or employee on the sole basis of testing positive for cannabis use, employers are permitted to require certain reasonable suspicion, post-accident, random, and pre-employment testing. The tests used must first include a Workplace Impairment Recognition Expert's physical evaluation, after which a scientific and reliable test may be performed. Adverse action following a positive test is only permitted if the employer's testing program uses scientifically valid methods and a Certified Workplace Impairment Recognition Expert has determined the individual was impaired.
Enforcing Decriminalization:
The Act also protects a candidate with an arrest, charge, or conviction for certain types of marijuana and hashish offenses. Employers are prohibited from taking adverse action against or requiring a candidate to disclose information on these offenses, as well as solely considering such offenses when making employment decisions. Employers who violate these provisions may be fined.
Compliance Recommendations:
New Jersey employers should review their drug and alcohol testing policies, forms, practices, and supervisor training to ensure compliance with Assembly Bill 21. Regulations implementing the Act are also expected. Watch for clarifying guidance.
Please contact your dedicated service professional with any questions.