Employers Who Drug Test Employees Required to Confirm Impairment Under New Marijuana Law

A case filed in New Jersey Superior Court is testing New Jersey’s new law legalizing recreational marijuana. It may lead to employers re-thinking the way they conduct random drug testing.

Paul Myers, 53, filed lawsuit in New Jersey Superior Court in Burlington County in June. He alleges his employer, National DCP, a supply chain company that services Dunkin’ Donuts franchises, broke the law when it fired him because he tested positive for marijuana.

Myers suffered from Crohn’s disease and was using marijuana to treat his pain. However, Myers did not have the legally required state issued medical marijuana card while using the drug. His employer conducted a random drug test (two days after New Jersey legalized medical marijuana) and it came back positive. However, Myers was unable to produce a medical marijuana card or a physician’s note. Even though he was in the process of getting a note from his doctor, his employer terminated him.

Since Myers did not have authorization to use marijuana, he raised a claim under New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). The new law that was signed on February 22, 2021 legalized recreational marijuana for those 21 and older.

Myers contends his employer violated CREAMMA because:

(1) he did not use marijuana during working hours, (2) he was never impaired on the job and (3) he never received a physical examination following the random drug test to determine his state of impairment.

Myers’ Case and CREAMMA

This case appears to be one of the first to challenge CREAMMA and an employer’s ability to terminate an employee based on a positive drug test. CREAMMA specifically states that an employer cannot refuse to hire, employ, or take an adverse action against someone merely because they have marijuana in their system. Instead, the person must show signs of being impaired on the job. To prove impairment, the employer needs to have a Workplace Impairment Recognition Expert on site to conduct a physical examination of the employee. This step is critical because unlike alcohol and other drugs, marijuana stays in the system long after it is used.

The problem is that many employers do not have these certified experts on site yet. This is because the state agency charged with enforcing the new law, New Jersey’s Cannabis Regulatory Commission, has yet to promulgate rules and regulations. The Commission’s deadline is August 21, 2021. With no direction from the state on how to comply with the new law, some employers are doing away with drug tests.

Key Takeaway

New Jersey employers are allowed to have a zero-tolerance policy against drugs in the workplace. Additionally, an employer is not required to permit or accommodate drug use at the workplace during work hours. What remains to be seen is how employers will conduct random drug tests for marijuana and confirm that someone is impaired while working on the job.

Are You Facing Adverse Action at Work for Cannabis Use?

If you failed a drug test at work, but you were not impaired and did not receive an evaluation to confirm impairment, your employer may be in violation of CREAMMA. The lawyers at McOmber McOmber & Luber, P.C. are experienced at handling such cases and are here to help you. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-878-9040 to find out more.