New Jersey Recreational Marijuana Law Affects Workplace Drug Testing

Drug Testing

Written By ESR News Blog Editor Thomas Ahearn

On February 22, 2021, New Jersey Governor Phil Murphy signed “The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (CREAMMA) into law to legalize and regulate marijuana use and possession for adults 21 years and older, according to a press release from the Governor.

“Our current marijuana prohibition laws have failed every test of social justice, which is why for years I’ve strongly supported the legalization of adult-use cannabis,” Governor Murphy stated in the press release. “This November, New Jerseyans voted overwhelmingly in support of creating a well-regulated adult-use cannabis market.”

On the same day, Governor Murphy also signed A1897, which decriminalizes a small amount of marijuana and hashish possession, and S3454, which clarifies marijuana and cannabis use and possession penalties for individuals that are younger than 21 years old. CREAMMA, also known as A21, affects workplace drug testing.

Under CREAMMA, employers are prohibited from taking adverse action against individuals solely because of recreational marijuana use, imposes the obligation to conduct a “physical examination” of individuals along with
marijuana drug tests, and calls for certified “experts” to make decisions about an individual’s use of marijuana.

However, CREAMMA ensures that employers may maintain and enforce drug-free workplace policies that prohibit the use, possession, or being under the influence of marijuana in the workplace and during work hours. Employers may take “adverse employment action” against employees who engage in the prohibited conduct.

The 240-page measure defines “adverse employment action” as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”

CREAMMA allows employers to conduct drug testing for pre-employment screening, suspicion of employee use of marijuana while at work, finding observable signs of marijuana use, regular screening of current employees, random testing for safety-sensitive positions, and following a work-related accident subject to investigation.

The rate of urine drug testing positivity in the U.S. workforce increased to a sixteen-year high in 2019, climbing to 4.5 percent, the highest level since 2003, according to an analysis by Quest Diagnostics. Marijuana positivity in the U.S. workforce increased nearly 11 percent in urine testing from 2018 to 2019 and 29 percent since 2015.

Employment Screening Resources® (ESR) – a leading global background check provider that was ranked the number one background screening firm by HRO Today in 2020 – provides Pre and Post Employment Drug Testing with access to more than 10,000 collection facilities. To learn more about ESR, visit www.esrcheck.com.

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