Tag: Legalization Law

New Jersey's Cannabis Legalization Law and New Employment Protections 2021, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization CREAMM Act came into law. This new law legalized cannabis for recreational use and was accompanied by two additional laws which decriminalized its consumption and possession. However, in addition to legalizing the recreational use of cannabis, the CREAMM Act also creates several employment protections for those who consume it and additional requirements for employers that choose to perform drug testing for cannabis. Prohibition on Discrimination The CREAMM Act forbids employers from discriminating against applicants or employees for the use of cannabis. Under the law, an employer is prohibited from denying employment to or taking adverse action against an individual solely on the basis of their use or choice not to use cannabis. Notably, this rule applies to safety-sensitive positions as well. However, given the inclusion of the word solely, if a positive test result is accompanied by an additional reason to support adverse action, it may be lawful. In addition, the cannabis decriminalization law created by A1897 also prohibits the consideration of certain cannabis-related offenses in employment decisions. Under this law, an employer may not require an applicant to disclose any arrest, charge, conviction, or adjudication of delinquency for certain marijuana-related offenses. Nor may an employer take any adverse employment-related actions based on such offenses. Violations of this rule can result in a civil penalty of up to $1,000 for an initial violation, $5,000 for a second violation, and $10,000 for any further violations. Workplace Policies and Testing Employers are still permitted to maintain policies prohibiting the possession, transfer, sale, display, transportation, and use of cannabis and cannabis items in the workplace. They may still maintain policies prohibiting intoxication during working hours, and to that end, employers may still perform drug testing of applicants and employees under certain circumstances. These include: Pre-employment screening Regular screening to determine use during work hours Randomized testing in compliance with regulations In response to observable signs of intoxication As part of a work accident investigation Testing must also adhere to certain requirements under the act. These tests must use "scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva." Such tests must also include a physical evaluation to determine the employee's level of impairment which must be performed by an individual certified as a Workplace Impairment Recognition Expert. A positive test may be used as a factor in making adverse employment decisions. However, they cannot be based solely on such a test. Instead, some other form of conduct must also support such a decision, such as possessing cannabis in the workplace. Learn More Exception for Federal Contractors The CREAMM Act provides an exception to the requirements for federal contractors. Under the exception, "If any of the provisions set forth in this paragraph or subsection a. of this section result in a probable adverse impact on an employer subject to the requirements of a federal contract, then the employer may revise their employee prohibitions consistent with federal law, rules, and regulations." This means that employers who are federal contractors would likely be able to take adverse action solely on the basis of a positive drug test for cannabis. Private Right of Action Notably, the CREAMM Act does not expressly provide for any private right of action for employees that allege violations under the act. However, employers in violation of the law's requirements may still face exposure from an implied right of action or common law claims of unlawful retaliation or wrongful termination. As a result, it is important to ensure all workplace policies are in compliance with the law in order to avoid civil fines and unnecessary litigation. Pre-employ offers resources to help employers stay compliant and incorporate fair chance hiring practices. Download our free resource guide on 5 Tips To Avoid FCRA Non-Compliance to learn more! Source

Tag: Legalization Law

New Jersey’s Cannabis Legalization Law and New Employment Protections

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