A recent decision from the New Jersey District Court illustrates the extraordinary job protections for recreational marijuana users under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”).
THE LEGAL BACKDROP
The job protection provisions of CREAMMA prohibit employers from disciplining employees “solely due to the presence of cannabinoid metabolites in the employee’s body fluid.” Although CREAMMA expressly permits workplace reasonable suspicion, post-accident and random testing for marijuana, it also mandates a physical evaluation be conducted “by an individual with the necessary certification” to determine the employee’s current state of impairment before discipline can be imposed. The physical evaluation requirement was included because current tests can only determine recent marijuana use, not current impairment. However, the physical evaluation requirement was temporarily waived by regulation until such time that the NJ Regulatory Cannabis Commission (the “Cannabis Commission”) develops standards for a Workplace Impairment Recognition Expert (“WIRE”) certification. Thus, for the time being a physical evaluation is not a prerequisite for taking action against an employee who tests positive for cannabis.
THE EMPLOYEE’S CHALLENGE
Plaintiff Robert Henson was involved in a two-person accident while operating a company vehicle. No one was injured and his co-worker admitted being primarily at fault. His employer, Daimler Truck of North America, mandated post-accident drug testing. Before the test, Henson advised his manager that he used marijuana several weeks earlier and expected to test positive. According to Henson’s complaint, management did not suspect that he was under the influence at the time of the accident. Following his positive test, Henson was suspended and ultimately terminated for the positive test.
Although initially denied unemployment benefits due to workplace misconduct, the NJDOL Appeal Tribunal reversed that decision, finding that “a positive result for marijuana alone, does not allow for adverse action by the employer” under CREAMMA.
Henson then filed suit, claiming in part that his suspension and termination solely for his positive marijuana test was a wrongful termination in violation of the public policy reflected in CREAMMA permitting recreational cannabis use.
THE COURT’S DECISION
Daimler moved to dismiss the wrongful termination claim on two fronts: i) the claim must fail because the physical evaluation requirement to determine current intoxication was temporarily waived by the Cannabis Commission, paving the way for Daimler to rely on the positive test to support his termination; and ii) as a federal contractor, Daimler was required to terminate Henson to comply with contractual mandates to maintain a drug free workplace. The court rejected both arguments.
Despite the workplace accident, the evidence showed that Daimler relied solely on the positive test in violation of CREAMMA. Daimler argued that Henson was not terminated solely because of the positive test but rather, because of a failed drug test following the workplace accident. The court disagreed, noting that Henson alleged that he was not at fault for the workplace accident and that prior to the testing there was no suspicion that he was intoxicated while on duty. Thus, the sole reason for Henson’s termination was the existence of cannabis in his system following the workplace accident, an action not permitted under CREAMMA.
Daimler could not invoke CREAMMA’s federal contractor exclusion. Next, Daimler pointed to the CREAMMA provisions stating that the statute’s requirements must yield if compliance with CREAMMA would result in “a provable adverse impact” on an employer subject to conflicting requirements of a federal contract. Daimler argued that Henson’s termination was necessary to ensure its compliance with the federal Drug-Free Workplace Act applicable to federal contractors. The court countered that the Drug Free Workplace Act and CREAMMA both sought to address the use of drugs in the workplace, which was not established in this case. In addition, the court noted that the Drug Free Workplace Act does not require federal contractors to test employees nor mandate termination of those who fail a drug screen. Thus, Daimler could not show compliance with CREAMMA would have a “provable adverse impact” on its federal contract.
THE TAKEAWAY FOR EMPLOYERS
It is important to note that the court was ruling on a motion to dismiss at the early stages of the proceeding, a point at which the court was limited to consideration of the factual allegations in Henson’s complaint. As the case goes forward, Daimler will have an opportunity to offer evidence showing that Henson was in part at fault for the accident and that management suspected that on duty impairment may have been a contributing factor. Such evidence would arguably be sufficient to show that the positive drug test was not the sole reason for the termination.
Until such time that the Cannabis Commission establishes the WIRE certification requirements, employers must be prepared to show that they had good reason to believe that the employee was impaired while on the job (e.g., observation by a supervisor of the signs of impairment) and that this suspicion factored in the decision to impose disciplinary action. Once the WIRE certification requirements are established, employers must ensure employees undergo physical examinations by a WIRE before imposing discipline on marijuana users.