Since the enactment of the New Jersey Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (Cannabis Law) last year, the use of recreational marijuana for adults ages 21 and older became legal. At N.J.S.A. 24:6I-52 of the Act states “[n]o employer shall … take any adverse action against any employee … because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.” However, regulations clarifying the law’s impact on employment drug testing have yet to be issued, creating confusion among employers. Employers seeking to terminate an employee for cannabis related infractions should exercise caution given the current legal uncertainty.
Before the Cannabis Law was passed, drug testing was generally permitted in New Jersey for pre-employment purposes, as well as when an employer had a reasonable suspicion that an employee was impaired by drugs. Additionally, employers were permitted to randomly drug test employees in safety-sensitive positions. The Cannabis Law provides that employees may be tested for cannabis in the following circumstances:
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