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NJ Employers Can’t Discriminate Based Solely on Positive Cannabis Testing

Recreational use of cannabis was legalized in New Jersey in 2021. For the first year or more, there was some uncertainty regarding how employers could treat employees who tested positive for cannabis. In September 2022, the NJ Cannabis Regulatory Commission (NJ-CRC) provided some welcome updates about employers’ regulation of marijuana use in the workplace.

It is now clear that employees cannot be fired for testing positive for cannabis. That’s because drug tests can detect traces of THC, the psychoactive substance in cannabis, in a person’s system up to four weeks after the person uses marijuana. If someone used the drug weeks earlier, there would be no current effect on that person’s work, so it’s not a firing offense.

On the other hand, employees do not have the right to use marijuana during working hours and they may not be under the influence of the drug while at work. Employers have the authority to maintain a drug-free work environment and they can terminate employees if they are caught using marijuana at work or if they are proven to be under the influence.

If an employer wants to terminate or discipline an employee for using marijuana, a positive test alone is not sufficient grounds. The test results must be accompanied by evidence of physical signs of impairment during the employee’s working hours. The NJ-CRC provides employers with a Reasonable Suspicion Observation Report form listing more than 40 physical and behavioral signs that a person might be under the influence at work. The employer is required to complete and submit the form in order to pursue action against the employee.

Even if an employer claims to notice certain physical or behavioral signs of marijuana influence in an employee and completes the form, that does not mean the worker can be immediately fired. Employers must still comply with all state and federal employment laws, including anti-discrimination laws and privacy laws.

At Deutsch Atkins & Kleinfeldt, P.C. in Hackensack, our employment lawyers help employees throughout New Jersey understand and assert their rights when it comes to marijuana use. If you believe your employer is treating you unfairly for lawfully using marijuana, call us at 551-245-8894 or contact us online to discuss the issue with one of our attorneys.

Neil  H.  Deutsch Attorney Photo
Neil H. Deutsch

Neil H. Deutsch has been practicing law for over 35 years and is known as a skilled negotiator in employment and discrimination law. He believes in a bottom-line approach of risk analysis and cost effectiveness for his clients. "Case evaluation is something we take seriously," says Mr. Deutsch who seeks top net dollar for his…

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Bruce L. Atkins
Senior Partner

Bruce L. Atkins is regarded as one of New Jersey’s premier practitioners of employment and civil litigation. He has been selected to the New Jersey Super Lawyers prestigious list every year since 2005.  This honor, bestowed upon a recipient by the votes of his peers, is a powerful nod to the skill Mr. Atkins brings…

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Adam J. Kleinfeldt

Adam J. Kleinfeldt joined Deutsch Atkins & Kleinfeldt, P.C. in March of 2015.  He primarily represents individuals in employment litigations such as discrimination, retaliation, and whistle blowing matters.  He has extensive experience in all phases of the litigation process. Adam has obtained significant results for some of his clients, including a $525,000 jury verdict in…

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Diane Englander Peyser

Diane Englander Peyser joined Deutsch Atkins & Kleinfeldt, P.C. in September 2018 where she represents employees in wrongful termination, retaliation, harassment, and discrimination matters. Prior to joining Deutsch Atkins & Kleinfeldt, P.C., Diane represented clients in all aspects of employment law on behalf of employees involving unemployment appeals, claims of sexual harassment, LGBT discrimination, disability…

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Debra M. McGarvey

Debra M. McGarvey joined Deutsch Atkins & Kleinfeldt, P.C. in December 2019. She has extensive experience defending employees and employers in state and federal court in employment litigation matters. She has represented clients on various issues arising out of the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA), the…

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