NJ Employers May Not Discriminate Against Recreational Marijuana Users

New Jersey workers may be compelled to submit to drug testing in various situations, such as applying for a new job or complying with continuing requirements for holding certain positions. While generally there is broad latitude in allowing employers to require standardized drug testing, there are limitations on what they may do with the results. The most recent laws imposing such limits pertain to employees testing positive for marijuana, since recreational use of the drug was legalized in 2021.

The New Jersey statute legalizing marijuana use also prohibits employers from discriminating against employees found to have cannabis in their systems. This means that an employer cannot do any of the following:

• Take adverse employment action against an employee solely for using marijuana off-premises
• Impose adverse employment consequences solely for the presence of cannabis in an employee’s body as detected by a drug test
• Consider any past offenses involving marijuana in disciplining an employee

The law does not apply to jobs that involve driving or jobs in schools, hospitals, detention facilities or adult or youth correctional facilities.

Employers are legally permitted to:

• Require a drug-free workplace and punish employees who possess or use marijuana on the premises
• Drug-test randomly or as reasonably related to investigation of workplace accident
• Take adverse action against employee who tested positive for cannabis and was also engaged in separate activity that was against company rules

Factual disputes can often arise when an employee tests positive for cannabis use. Blood or urine tests, the ones most often used by employers, are unspecific as to when the subject used the cannabis product. A positive test, if not a false positive, may be indicative of use one hour, one day, one week or perhaps even one month prior to the test date.

Since an adverse consequence cannot be based solely on a positive test, an employer may discipline a worker for a work-related reason, such as being impaired by cannabis while on the job. An employer might allege that an employee who tested positive at work was impaired at the time of testing. However, an impairment determination can be made only by a person with certification as a Workplace Impairment Recognition Expert (WIRE).

Too often, employers step outside the boundaries of the law in the treatment of their employees. At Deutsch Atkins & Kleinfeldt, we have years of experience championing the rights of New Jersey workers. If you believe you are facing discrimination at your job for marijuana use, contact us online or call us at 551-245-8894 to schedule a consultation at our Hackensack office.