Your Remedies for Discrimination Based on Recreational Marijuana Use

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMM Act) is a comprehensive law that legalizes and regulates the adult-use of cannabis in the state. The 2021 statute also includes a number of important employee protections, including a prohibition on employers taking adverse action against employees for cannabis use outside of the workplace.

These are among the key provisions of the CREAMM Act that affect the workplace:

• Off-duty use protection — The act explicitly protects employees’ rights to use cannabis during their personal time, away from the workplace. Employers cannot discriminate against employees solely based on their off-duty cannabis consumption.
• No automatic termination — Employers cannot automatically terminate or take adverse action against employees who test positive for cannabis. Instead, they are required to follow certain procedures outlined in the act.
• Reasonable accommodation — Employers must provide reasonable accommodation to employees who use medical cannabis, as long as it does not cause undue hardship to the business.
• Adverse action procedures — If an employer wishes to take an adverse action against an employee due to cannabis use, they must follow specific procedures, which means providing written notice and allowing the employee an opportunity to present a legitimate explanation.

The CREAMM Act defines “adverse action” to include a wide range of negative employment-related actions, such as termination, demotion, suspension and discipline. The law also prohibits employers from requiring employees to submit to drug tests for cannabis unless the employer has a reasonable suspicion that the employee is impaired at work.

If you are an employee in New Jersey and you are subjected to adverse action by your employer for cannabis use outside of the workplace, you have a number of remedies available to you. You can file a complaint with the New Jersey Cannabis Regulatory Commission (CRC), which will investigate your case. If the CRC finds that your employer violated the CREAMM Act, it can order that corrective action be taken, which may include reinstating your job and awarding you back pay.

You can also file a lawsuit against your employer in state or federal court. If you prevail in your lawsuit, you may be awarded damages, including back pay, front pay, punitive damages and attorneys’ fees.

As an alternative remedy, you can report your employer to state and federal agencies. The Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting discrimination in employment, including discrimination based on disability. The Division on Civil Rights enforces New Jersey’s laws against discrimination.

If you believe you are facing discrimination in a New Jersey workplace, the attorneys at Deutsch Atkins & Kleinfeldt, P.C. in Hackensack are ready to help. Call 551-245-8894 or contact us online to discuss your case.