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.