Navigating Marijuana Laws in New Jersey: What Employers Must Know and Do

New Jersey has two critical laws that limit if, when, and how employers can respond to employee marijuana use. One is the Jake Honig Compassionate Use Medical Cannabis Act (N.J. Stat. Ann. § 24:6I-14), or CUMCA, and the other is the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (N.J. Stat. § 24:6I-31 et. seq.), aka the CREAMM Act. These two laws make clear that employers must not penalize—or even test—employees for off-duty marijuana use when such action is prohibited, yet they must take appropriate action when responding to use that is not permitted. These laws present a fine line with penalties on both sides. However, advance planning can limit your risk. Let’s look at the key aspects of these two laws.

Medical Marijuana and the Workplace: Employer Obligations Under CUMCA and LAD

CUMCA was the first of the two laws and legalizes marijuana strictly for medical use. However, it explicitly does not require employers to allow marijuana use while on the job, even with a valid medical prescription (§ 24:6I-6.1(c)). This exception only applies during working hours. Outside of work, the New Jersey Law Against Discrimination (LAD) protects employees’ right to use prescribed medication, including medical marijuana.

The application of these two statutes can create a gray area for some employers. Standard drug tests can show if someone has used marijuana recently, but they can’t confirm whether someone is currently impaired. That makes it risky for employers to take disciplinary action against an employee solely based on a positive drug test without additional observations.

Fortunately, employers can take proper steps to handle these situations. A knowledgeable employment lawyer can help employers set clear policies, navigate compliance, and reduce the risk of costly legal issues. Additionally, they can assess whether they have breached any existing legal obligations under CUMA and advise on corrective action if necessary.

Recreational Marijuana and the Workplace: Employer Obligations under the CREAMM Act

The CREAMM Act expanded the legalization of marijuana in New Jersey to include recreational use and introduced new restrictions for employers. Specifically, employers are generally prohibited from testing employees for marijuana use unless certain conditions are met (N.J. Stat. § 24:6I-52(a)(1)).

Some situations where marijuana testing is allowed are straightforward—such as during a pre-employment screening or after a workplace accident that’s under investigation. Other conditions are more nuanced. For example, if an employee appears impaired or there’s a reasonable suspicion of marijuana use during work hours, employers need to proceed with caution. In these cases, it’s important to follow existing company policies which align with CREAMM and consult legal counsel to ensure any action taken complies with the law.

Note that chemical drug tests cannot determine if an individual is currently under the influence of marijuana. As a result, even for a test that is legally permitted, employers will need additional evidence to support any disciplinary action.

Marijuana Testing and Workplace Policy: Considerations for Identifying and Documenting Impairment

The New Jersey Cannabis Regulatory Commission has issued guidance on identifying and documenting signs of impairment and provides a form that guides employers through an assessment. However, identifying and documenting impairment can be tricky. In most cases, employers should strongly consider speaking to a lawyer before taking any action that could risk noncompliance with state law.

Further, to limit liability, employers should adopt both a written drug use policy and a drug testing policy. They should also make sure that all employees sign off that they have read the policies. Equally important, employers should train managers on identifying and documenting signs of workplace impairment—before any issues arise. Remember, employers can be held liable if an impaired employee injures someone because they failed to act.

These preparations are manageable if implemented proactively. As the saying goes—an ounce of prevention is worth a pound of cure.

(Find the Commission’s Observed Behavioral Report form here: link here.)

Navigating Conflicting Obligations: How Federal Law Impacts Marijuana Policies 

It’s important to note that the legal landscape described above reflects New Jersey state law—marijuana is still illegal under federal law. Some federal laws, licenses, and contracts require a drug-free workplace, which includes prohibiting marijuana completely. Fortunately, the New Jersey laws specifically allow employers to do whatever is necessary to comply with their federal requirements (N.J.S.A. § 24:6I-6.1(c); 24:6I-52(b)(1)(B)). Taken together with concerns about workplace safety or potential negligence claims, this means employers are often either required to prohibit marijuana use or ignore it—depending entirely on the context.

Bottom line: Employers must be vigilant and plan. They should know which obligations apply to their specific operations and in what situations, set up clear workplace policies and consequences and act accordingly, and finally, consult legal counsel when unsure.