Cannabis at work? A New Jersey Employer’s Guide
Although federal law currently prohibits the use of marijuana, New Jersey authorizes recreational and medical use under two statutes, the NJ Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) and the Jake Honig Compassionate Use Medical Cannabis Act. While we have seen similar legislation passed across the US, as a New Jersey employer, you may have outstanding questions about how the legislation affects your business policies and procedures. Please refer to our Frequently Asked Questions (FAQs) and continue to check back for updates as the laws and regulations around this subject continue to evolve.
Cannabis at Work: FAQs
1. As an employer, am I required to allow my employees to come to work under the influence of cannabis?
No. While the law now decriminalizes the use of recreational cannabis, it does not allow any new rights to the employee. Just as you aren’t expected to allow employees to work under the influence of alcohol or other drugs, you do not have to tolerate an employee being under the influence of cannabis.
2. My company follows Federal regulations. How does this law impact my business?
Cannabis is still illegal federally. If you are subject to Department of Transportation (DOT) or considered a government workplace or contractor then you must sign off on the federal allowances. Additionally, Cannabis cannot be consumed by either the driver or passenger of a car. As with federal law, there are some state requirements that require employees to be drug-free.
3. Can drug testing for cannabis shrink your pool of potential candidates?
Potentially, yes. At Symplified HR, we often counsel our clients to consider the impact of including this drug test in the hiring process and to consider if it is worth the effort. Removing cannabis from the panel of drugs tested may be an option for employers to consider if their industry does not require such testing for safety.
4. Can I fire employees if they fail a cannabis drug test?
With proper policies and consistent practices, employers may terminate employees who do not pass a drug test. We advise all of our clients to consult with legal counsel to ensure that the termination is consistent with applicable laws.
5. I don’t personally agree with recreational cannabis use. I have never drug tested for cannabis before, but now I want to know who in my company uses it. Can I start enforcing this drug test?
We don’t recommend drug testing just to “catch people” in the act. Whether to drug test or not should be thought of as a business decision only and employers should consider how or if this test would benefit the company and employees as a whole. Your personal beliefs and preferences around whether cannabis should be legalized recreationally have no place in how you create policies and enforce policies for your organization. It is not recommended to create policies to dictate what people do outside of work. There might be unintentional consequences, including eliminating or alienating your workforce.
Adopting a consistent drug test policy that works for your place of business can be created so long as you are able to apply it consistently.
6. Can I ask my employees if they use cannabis recreationally?
We wouldn’t encourage anyone to actively ask any questions in regard to an employee’s recreational use of cannabis outside of work.
7. How should employers handle cannabis use during work hours?
Employers can prohibit cannabis use during work hours. It’s crucial to communicate this policy clearly to employees, ensuring they understand the consequences of violating it. Employers can also implement training for managers to recognize impairment and address related issues.
8. Are there any protections for employees who use cannabis outside of work?
Yes, the law provides certain protections for employees. Employers cannot discriminate against employees for lawful off-duty conduct, including legal cannabis use, unless it affects job performance or safety. This includes not penalizing employees for testing positive for cannabis, unless they are impaired at work.
9. Can employers restrict cannabis use for remote workers?
Yes, employers can set expectations for remote workers regarding cannabis use, particularly if it affects job performance. Policies should be clearly communicated, and employers should ensure that remote workers understand the implications of using cannabis while working from home.
10. What about medical cannabis users?
The New Jersey Compassionate Use Medical Cannabis Act protect qualified medical cannabis patients from discrimination in the workplace. Employers must accommodate these employees, provided it doesn’t impose an undue hardship on the business. Employers may still enforce drug-free policies, but they must consider the rights of medical users.
11. How should employers adjust their hiring practices regarding cannabis?
Employers may want to review and adjust their hiring practices to reflect the legal status of cannabis. This may include eliminating pre-employment drug testing for cannabis unless it is necessary for specific safety-sensitive positions.
Employers should also ensure that their job descriptions and requirements align with legal standards.
12. How will this law affect my dress code and grooming policies?
Like offensive body odor, the strong smell of marijuana could offend others at the workplace. Decisions should be made – and included in company policies – about how you will address employees coming to work smelling like cannabis or any other grooming concerns that might arise.
13. What are the implications for safety-sensitive positions?
For safety-sensitive positions, employers are permitted to maintain stricter drug policies. If an employee in such a role tests positive for cannabis, the employer may have grounds for disciplinary action, especially if the employee was impaired while performing their duties.
14. How can employers prevent workplace impairment?
Employers should implement clear policies that define impairment and provide training for supervisors on recognizing signs of impairment. Providing resources for substance abuse education and offering Employee Assistance Programs (EAPs) can also help address issues related to impairment.
15. Can employers conduct random drug tests?
Yes, employers can conduct random drug tests, but they must ensure that their testing policies comply with state law. Employers should clearly communicate the testing policy to employees and outline the consequences of positive tests.
16. What should be included in a workplace cannabis policy?
A comprehensive workplace cannabis policy should include:
· A clear stance on cannabis use during work hours
· Guidelines for drug testing
· Information on impairment and how it will be assessed
· Procedures for reporting incidents related to cannabis
· Accommodations for medical cannabis users
· Disciplinary actions for policy violations
17. How will this law affect my dress code and grooming policies?
Like offensive body odor, the strong smell of marijuana could offend others at the workplace. Decisions should be made – and included in company policies – about how you will address employees coming to work smelling like cannabis or any other grooming concerns that might arise.
As New Jersey continues to evolve in its approach to cannabis use and regulation, employers must navigate the complexities of legal compliance, workplace policies, and employee rights.
The information provided on this website does not constitute legal advice and is for general informational purposes only.
