New Jersey law allows for medical and recreational use of marijuana. It also generally bans testing current employees for use outside of work. State law has language stating a positive marijuana test shouldn’t prevent someone from getting hired. However, state law has also been interpreted as not giving job applicants the ability to protect these rights in court, so an affected worker has limited options.

This doesn’t make much sense, but this is what happens when statutes are written but not clearly enough. There are many competing interests vying for a say in the legislature, so the resulting picture isn’t clear-cut and straightforward. Worker advocates secured various rights in the statute, but employers managed to dilute them to the point where enforcement is effectively nonexistent.

Marijuana Wasn’t Always Illegal

Anglo-Americans and Europeans have known about marijuana’s medicinal benefits since at least the 1830s, according to History.com. Sir William Brooke O’Shaughnessy, an Irish doctor in India around that time, found that cannabis extracts eased cholera symptoms such as stomach pain and vomiting. Americans and Europeans bought marijuana extracts in pharmacies and doctors’ offices for a variety of ailments.

After the spread of rumors of Mexicans selling pot to American children and marijuana giving criminals super-human strength, 29 states made marijuana illegal from 1916 to 1931. The federal Marihuana Tax Act of 1937 essentially banned it nationwide.

Marijuana-related state criminal penalties increased during the 1960s and softened in the 1970s. Currently, 29 states allow for its medicinal use, and its recreational use is legal in seven states plus the District of Columbia.

New Jersey Makes Marijuana Use Legal

Limited medicinal use of marijuana started in 2010 and gradually expanded over the following years. New Jersey residents voted in a referendum for the legalization of adult-use cannabis in 2020. The following year, Governor Phil Murphy signed three bills into law that changed marijuana’s legal status, according to New Jersey’s Attorney General.

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) was enacted to regulate the cultivation, distribution, and use of cannabis in New Jersey. It also states:

“No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items…[A]n employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid from engaging in conduct permitted under (NJCREAMMA)…”

What the law doesn’t include is language empowering people suffering illegal employment discrimination in violation of the law to file a private lawsuit against the potential or current employer committing the acts.

Workers Can Be Tested While on the Job, But Can’t be Fired Solely for Testing Positive for Marijuana Use

An employee shouldn’t be subjected to an employer’s adverse action just because the person tested positive for marijuana use, according to the state’s Cannabis Regulatory Commission (CRC). Employers have a right to maintain a “drug free workplace” consistent with state law. They can require you to undergo a drug test if there’s:

• Reasonable suspicion that you’re using cannabis or are impaired at work
• A random drug test program
• A work-related accident you’re involved in that your employer is investigating

Test results showing cannabis use plus “evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action.”

State and Federal Courts Expose Toothless Law

In January 2022, Erick Zanetich applied for a job at a Walmart facility in Swedesboro. He was offered the job a week later, provided he passed a drug test, as per company policy. Zanetich tested positive for marijuana, and Walmart withdrew the job offer. Given NJCREAMMA’s anti-discrimination language, Zanetich, as part of a possible class action, sued Walmart for violating the law.

His case was dismissed in state district court. That decision was appealed and heard in the US Court of Appeals, Third Circuit in December, which agreed that the state legislature didn’t empower him to take his claims of alleged employment discrimination based on his positive marijuana test to court. They dismissed the case, too.

The federal court stated if anyone can take legal action to protect job applicants and workers, it’s the state’s CRC, but there’s no specific, express granting of that power in NJCREAMMA. If and when the agency takes that action, expect the employer to try to dismiss their legal action for that reason.

As it stands now, New Jersey job applicants and employees have the right not to be discriminated against due to their cannabis use/positive test, but no way to actively protect these rights. Legally, there’s not much downside to an employer breaking this law, though they risk becoming a test case to further define NJCREAMMA’s protections, if any.

The NRC may or may not want to get involved in your situation and pursue the employer. Depending on the facts, your potential or actual employer may have broken other laws that could be the subject of a lawsuit.

If you’re facing a marijuana testing issue at work, please call us so we can discuss the situation and how New Jersey law may apply.

Has Your Employer Illegally Discriminated Against You?

Do you have questions or concerns about marijuana testing and how it may affect your ability to get hired or keep your job? If so, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call us today. You’ll be glad you did.