NJCREAMMA and the Honig Act Create Far-Reaching Obligations for Employers

Over the past several years, a number of new pieces of legislation have fundamentally changed employers’ rights and responsibilities with respect to carte blanche prohibitions on employee marijuana use.

First, in 2019, the Jake Honig Compassionate Use of Medical Cannabis Act, N.J.S.A. 24:6I-1 et seq., (“the Honig Act”) was passed, prohibiting employers from taking adverse employment actions against registered qualifying medical marijuana users, subject to a limited number of exceptions. More recently, on Feb. 22, 2021, Governor Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA). In the wake of the passage of Public Question No. 1 in New Jersey, NJCREAMMA, in part, governs the recreational use of marijuana. The law also has important implications for employers.

Employment practitioners and employers must take careful note of the provisions of both laws and should remain on the lookout for more guidance from the state (and presumably the courts) to answer the numerous open questions left in the wake of these new laws.

With respect to employers’ obligations surrounding the use of medical marijuana, the Honig Act governs. In addition to prohibiting adverse action against registered qualifying medical marijuana users, the Honig Act sets forth a regimented procedure that must be followed by employers who have drug testing policies that include cannabis. If an employee or job applicant tests positive for cannabis, the employer must offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result. N.J.S.A. 24:6I-6.1b(1).

Specifically, the employer must provide written notice to the employee or job applicant who tests positive of his or her right to present a legitimate medical explanation for the positive test result. The employee or job applicant has three working days from the date of receipt of the written notice to submit information to the employer to explain the positive test result or to request a retest of the original sample at the employee or job applicant’s own expense. N.J.S.A. 24:6I-6.1b(2). Valid explanations for the positive test could include an authorization for medical cannabis issued by a health-care practitioner, proof of registration with the commission, or both.

The Honig Act includes two exceptions to its prohibition on adverse action against registered medical marijuana users in the workplace. First, employers are not prohibited from taking adverse action against employees who possess or use intoxicating substances during work hours or on workplace premises outside of work hours. N.J.S.A. 24:6I-6.1c(1). Thus, an employer can terminate or otherwise discipline an employee who uses or possesses marijuana during work hours, even if that employee is a qualified medical marijuana user. Second, the law does not require an employer to take any action that would cause the employer to be in violation of federal law, result in a loss of a licensing-related benefit pursuant to federal law, or result in the loss of a federal contract or federal funding. N.J.S.A. 24:6I-6.1c(2).

The Honig Act has created a long list of questions that leaves employers and employment practitioners alike struggling to adopt best practices, and this predicament is made all the more puzzling by the lack of any regulations or other state guidance on the Honig Act. The first question for employers and employment practitioners relates to the procedure set forth in the Honig Act related to testing: What are an employer’s obligations once the employee or job applicant either does or does not present a valid medical explanation for a positive drug test? Although the Honig Act does not explicitly say so, an employee who fails to submit valid information explaining the positive test result seemingly is not protected from adverse employment action pursuant to the provision (although the employee now may be subject to protection under the terms of NJCREAMMA).

An additional question raised by the Act’s language is the precise limits of the exception that permits employers to prohibit or take adverse employment action against employees who possess or use intoxicating substances “during work hours” or “on the work premises outside of work hours.” N.J.S.A. 24:6I-6.1c(1). Unlike similar laws with comparable exceptions enacted by a number of other states, the language of New Jersey’s law does not explicitly preclude a situation in which an employee has used medical marijuana off-site, before work hours, and reports to work while still under the influence.

For example, the Delaware Medical Marijuana Act includes an exception to its anti-discrimination provision where the employee “used, possessed, or was impaired on the premises of the place of employment during the hours of employment.” Del. Code. Ann. tit. 16 §4905A. While New Jersey’s law includes no such language, and thus it is not entirely clear whether impairment at the workplace fits into the exception in New Jersey law, many are of the opinion that an employee who reports to work under the influence would not be protected under the Honig Act. However, we will not know for sure until the state issues regulations or the courts are faced with the issue.

NJCREAMMA became law on Feb. 22, 2021, and governs recreational use of marijuana. NJCREAMMA includes a provision prohibiting employers from refusing to hire, discharging, or otherwise taking adverse action against any employee because that person does or does not use cannabis. NJCREAMMA makes clear that it does not restrict an employer’s right and/or obligation to maintain a drug- and alcohol-free workplace, and that it does not require an employer to permit or accommodate the use of cannabis in the workplace. Pursuant to the terms of NJCREAMMA, employers are still permitted to have policies in place that prohibit employees from being intoxicated and/or under the influence of cannabis in the workplace and during work hours.

NJCREAMMA also outlines when employers may require employees to submit to drug tests to determine whether the employee has marijuana in their system. Employers may require employees to submit to drug tests if one of the following circumstances exists:

• There is suspicion that the employee used cannabis while engaged in the performance of his or her work responsibilities.
• There is a finding of observable signs of intoxication related to the use of cannabis.
• A work-related accident has occurred.

NJCREAMMA allows employers to use random drug testing, pre-employment screening, and routine testing of current employees, but only to discover cannabis use during the employee’s work hours. Complicating the matter further, “drug test” is defined in NJCREAMMA to mean both a process that uses a “scientifically reliable objective testing method and procedure” and a physical evaluation by a Workplace Impairment Recognition Expert (a term to be defined in the implementing regulations of NJCREAMMA, but which currently remains undefined). It is only in circumstances where both the test and the expert find that the employee is under the influence during work hours or in the workplace that adverse action can be taken against the employee.

At this time, employment practitioners and employers are faced with a number of questions about the Honig Act, NJCREAMMA, and the relationship between the two laws. Crucially, based on an initial reading of the two laws, it would appear that NJCREAMMA’s prohibition on taking adverse action against employees for using cannabis outside of the workplace almost entirely envelops the Honig Act, and could render the post-positive test procedure set forth in the Honig Act moot in most circumstances. In other words, except where an employer must maintain a drug-free workplace to comply with federal law, it would appear that an employer is precluded from taking any adverse action against an employee who uses marijuana outside of the workplace and outside of work hours. It remains to be seen whether the laws will be interpreted this way.

In the meantime, employers should expect that they will soon be faced with an increased number of positive marijuana test results, and practitioners must be prepared to assist employers in managing and responding to those results. Of the utmost importance are procedures and policies that allow employers to distinguish between medical and recreational marijuana use, so that differences in the two laws can be taken into account when responding to positive drug tests. When faced with a positive test result, an employer should immediately inform the employee of their rights under the Honig Act to provide a valid medical explanation for the positive test result. If the employer receives valid medical documentation supporting the employee’s use of medical marijuana, the Honig Act’s requirements apply; if the employer does not, then the provisions of NJCREAMMA apply. Employers should keep diligent documentation about the circumstances that led to the drug test, particularly where there is some evidence or suspicion that the employee used marijuana at the workplace or was otherwise under the influence at work.

Employers will need to make significant changes to their drug-testing policies in light of NJCREMMA; however, precisely what those changes must be may be unclear until additional guidance is issued. Also remaining to be seen are the scope of the role of Workplace Impairment Recognition Experts, and who would be potentially considered to fulfill such a role. Thus, most importantly, employment practitioners and employers should be on the lookout for further guidance from the state and courts.

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Reprinted with permission from the March 15, 2021 issue of the New Jersey Law Journal. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.