New York and New Jersey recently legalized recreational marijuana within less than 6 weeks of each other. While both acts prohibit employers from taking action against employees at least 21 years old who use marijuana recreationally and restrict employers from denying these employees’ employment rights and privileges based solely on marijuana use, it begs the question: What actions may an employer take to ensure a drug-free workplace?
The short answer: It’s complicated.
Employee Protections for Recreational User in New York
The Marijuana Regulation and Taxation Act (MRTA) makes it unlawful for any employer to refuse to hire, employ, discharge or otherwise take an adverse employment action against an individual or job applicant because of his/her legal use of cannabis. Legal use must occur prior to the beginning or after the conclusion of an employee’s work hours or during legal recreational activities and must be off the employer’s premises and without use of the employer’s equipment or other property.
Under MRTA, a New York employer
- Does not have to permit possession or use of cannabis at its workplace
- Can take action if an employee shows articulable symptoms of impairment
- Has the right to implement and maintain the policies necessary to provide a healthy and safe work environment
- Cannot be forced to take or allow any action that would result in a violation of federal law or loss of a federal contract or federal funding
- Must still comply with all required by state or federal statute, regulation, ordinance or other governmental mandate.
Employee Protections for Recreational User in New Jersey
Under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMM), no employer can refuse to hire or employ or discharge any person from employment or take any adverse action against an employee because that person does or does not use cannabis items. Moreover, an employee cannot be subject to any adverse employment action solely due to the presence of cannabis in the employee’s body fluids.
Under CREAMM, a New Jersey employer
- Does not have to permit an employee to work under the influence
- Is not required to allow or accommodate an employee’s use, consumption or possession of cannabis at the workplace
- Is permitted to have policies that prohibit the use of cannabis items or intoxication by employees during work hours
- Can revise their employee prohibitions to be consistent with federal laws, rules, and statutes if any provisions of CREAMM results in a provable adverse impact on an employer subject to the requirements of a federal contract.
Protections for Employees Who Are Certified Patients Using Medical Cannabis in NY
As previously provided in New York’s Compassionate Care Act (CCA), certified patients, under the statute, may not be subject to any prosecution or penalty in any manner or denied any right to privilege solely for the certified medical use of cannabis. MRTA adopted the protections of CCA and expanded the coverage of medical conditions that would allow an individual to qualify for medical cannabis use.
Moreover, a certified patient is deemed to have a disability under the New York State Human Rights Law. Thus, the employer of a certified patient is obligated to engage in cooperative dialogue with the employee to see if the employee entitled to a reasonable accommodation. However, an employer is not barred from enforcing a policy that prohibits an employee from performing his job while impaired or acting in a manner that would be in direct violation of federal law or cause it to lose a federal contract or federal funding.
MRTA also provides that certified patients must be afforded the same rights, procedures, and protections available and applicable to injured workers under the workers’ compensation law when such workers are prescribed medications that may prohibit, restrict or require the modification or performance of their job duties.
Protections for Employees Who Are Qualifying Patients Using Medical Cannabis in NJ
Under New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act (CUMC Act), it is unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant. If an employer has a drug testing policy and an employee or job applicant tests positive for cannabis, the employer must offer, in writing, the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result. Additionally, an employer who takes an adverse employment action against a qualifying patient solely due to a positive test result could be violating New Jersey’s Law Against Discrimination.
Nothing in the CUMC Act is deemed to (1) restrict an employer’s ability to prohibit, or take adverse employment action for, the possession or use of intoxicating substances during work hours or on the premises of the workplace outside of work hours; or (2) require an employer to commit any act that would cause the employer to be in violation of federal law, that would result in a loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.
Employee Drug Testing in New York
While New York City prohibits pre-employment drug testing, the State of New York does not have any laws, rules or regulations relating to pre- or post-employment drug testing. That said, although employers outside of New York City can conduct pre-employment drug testing, such testing would essentially be an exercise in futility since employers cannot use a positive test result to deny employment. Additionally, under MRTA, an employer cannot use a positive test result as the sole basis to discipline or discharge an employee.
Employee Drug Testing in New Jersey
Under the CUMC Act, if an employer reasonably suspects an employee is using cannabis while working, or reasonably expects the employee is intoxicated from the use of cannabis, the employer may require the employee to undergo a drug test. An employer may also conduct random drug tests. Employers may also implement drug testing as part of pre-employment screening or regular screening of current employees to determine cannabis use during their prescribed work hours.
The drug test must include scientifically reliable, objective testing methods and procedures, such as testing of blood, urine, or saliva, and a physical evaluation to determine an employee’s state of impairment. The person conducting the physical evaluation should have the proper certification to give an opinion on the employee’s impairment status related to cannabis use. The employer may use the results of the drug test when determining the appropriate employment action concerning the employee, such as dismissal, suspension, demotion, or other disciplinary action.
New York and New Jersey employers should review and revise their employment policies to ensure they are in compliance with the MRTA and CREAMM and should speak with employment counsel before taking any adverse action against an employee for cannabis use outside of work and/or for medical reasons.
Once New Jersey and New York have issued regulations in connection with the adult use statutes, we will provide an update.