On February 22, 2021, Gov. Murphy signed three bills related to cannabis legalization in the state. The laws largely did not impact employers until August 21, when the New Jersey Cannabis Regulatory Commission (CRC) finalized their rules around the sale and use of cannabis. As states continue to create new marijuana laws or make changes to existing ones, it’s vital that employers remain updated. Protecting workplaces against drug abuse and misuse, especially with safety-sensitive positions, is paramount to the success and reputation of a company and the health and safety of its employees.
Effective immediately, an employer cannot refuse to hire, employ, discharge, or take adverse action against an individual in terms of compensation, terms, or other privileges of employment because the individual uses cannabis. Federally or DOT-mandated programs require no changes. Cannabis use remains prohibited in the workplace, and employers may still enact and enforce policies pertaining to cannabis use in the workplace. Additionally, employers are not required to exempt anyone from any requirement of federal law or regulations. Companies with employees in New Jersey need to decide under what circumstances they intend to test for marijuana and when they will not. It is strongly recommended to consult with your corporate legal counsel to confirm that your panel meets these testing requirements and the new law.
As described by the legislation, employers can now test employees for cannabis under the following circumstances:
• Reasonable suspicion of an employee’s use of cannabis while engaged in work responsibilities.
• Upon finding observable signs of intoxication that are related to cannabis use (to be performed by an individual with a certification to opine on an individual’s state of impairment relating to cannabis).
• Following a work-related accident that is subject to employer investigation.
As described by the legislation, employers can now act pertaining to cannabis use ONLY under the following circumstances:
• If the employer’s actions are required by federal law, statute, regulation, ordinance, or mandate.
• If an employee is “impaired” by cannabis use on the job or worksite.
- To act based on impairment, the employee must manifest specific, articulable symptoms while working that decrease or lessen their performance of duties or tasks related to their position.
- Alternatively, an employer can act when said articulable symptoms interfere with the employer’s obligation to provide a safe and healthy workplace free from recognized hazards as required by state and federal law.
- The law also requires employers hire a Workplace Impairment Recognition Expert (WIRE) to make such assessments prior to any required testing. However, employers must wait on future guidance before they can comply with this requirement.
When determining the appropriate employment action concerning an employee, including, but not limited to dismissal, suspension, demotion, or other disciplinary action. Action cannot be taken SOLELY based on the presence of cannabis metabolites in a drug test.
Recommended Action Items
• Review the New Jersey bills (S.21/A.21/A.5342) and familiarize yourself with New Jersey impairment standards.
• Immediately review your corporate testing program and drug testing panel with your legal counsel to determine if changes are needed.
- Note: This communication does not apply to federally mandated programs (e.g., DOT)
- Review which states have passed laws relating to medical marijuana, decriminalization, or legalization: https://disa.com/map-of-marijuana-legality-by-state
- To modify your corporate testing panel:
- Update your corporate drug testing policy (or policies) to include the conditions that apply to your employees.
- Communicate your requested changes to your TPA
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Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background screening, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.