Marijuana in the Workplace

 

What HR Management and Other Executives Need to Know

Introduction

At the time of this writing, 39 states have legalized the use of medical marijuana, and 17 states have legalized the use of recreational marijuana. What are some of the most important points that HR management needs to keep in mind to navigate these uncharted waters?

In this article, we’ll use New Jersey as an example of a state that, after legalizing medical marijuana in 2019, has now legalized marijuana for recreational use. We’ll discuss what this might mean for HR professionals in New Jersey, so HR professionals in other states can anticipate facing similar situations in the future.

Note that issues surrounding the legalization of marijuana and its use in the workplace are highly sensitive, and legislation changes frequently. So before creating any policies, it’s advisable to seek legal counsel.

Medical marijuana in New Jersey workplaces

On July 2, 2019, Governor Phil Murphy signed the Jake Honig Compassionate Use Medical Cannabis Act, prohibiting employers from refusing to hire, threatening, discharging, or otherwise retaliating or discriminating against an employee based solely on that person’s status as an individual who’s certified to use medical marijuana.

Nothing in this act requires employers to accommodate the consumption of medical marijuana during work hours or to take any action relating to medical marijuana in the workplace that could result in the loss of federal funding.

The act does not prohibit employers from requiring drug testing prior to hiring a candidate or during an employee’s employment. However, if the individual fails the test, the employer must supply them with written notice of this fact and expressly offer them the opportunity to provide the employer with a valid medical explanation for the result. Subsequently, the individual has three working days to show their medical marijuana card. Alternatively, they may request a retest at their own expense.

If the employee provides a valid medical explanation, the employer may not take any adverse action against them based solely on their failed drug test.

When it comes to employees in safety sensitive roles, the act remains ambiguous. The use of the word “solely” raises the question as to whether an employer may take an adverse employment action against an employee based on both a failed drug test and the fact that the employee holds a safety sensitive position.

Recreational marijuana in New Jersey workplaces

On February 22, 2021, Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act (CREAMMA) into law. This act prohibits employers from refusing to hire, threatening, discharging, or otherwise retaliating or discriminating against an employee based solely on that person’s status as an individual who uses recreational marijuana.

However, an employer may forbid the use, consumption, display, transportation, sale or growth of marijuana or marijuana products in the workplace and during work hours. They may also forbid employees from coming to work while under the influence of marijuana.

An employer is permitted to administer drug tests but may not take adverse employment action against an employee based solely on their failed drug test for marijuana. In addition, a physical examination of the employee must be performed at the same time as the test. This examination must be conducted by someone who possesses the necessary certification to make a determination regarding the employee’s state of impairment or lack of impairment due to marijuana use.

If an employer concludes that an employee used, possessed or was under the influence of marijuana at work or during work hours—whether or not a drug test and physical examination are performed—the employer may be allowed to discharge or discipline the employee.

Consideration points for HR management in New Jersey

With the state now having legalized both medical and recreational marijuana, it’s advisable for HR management to take a close look at their company's approach to the consumption of cannabis.

In addition to reviewing and potentially revising policies—with the guidance of legal counsel—HR should consider whether it’s positive or negative for the business to be perceived as tolerant or intolerant of marijuana use in terms of public perception and company culture. On top of that, HR should examine whether the tolerance of marijuana use opens a greater talent pool by accepting candidates who would otherwise be eliminated if required to pass a drug test for marijuana as a condition of employment.

HR management might want to ensure all HR personnel, as well as company managers, are educated regarding the restrictions and requirements of CREAMMA. It might also be advisable to educate HR personnel and company managers about the signs of being under the influence of marijuana.

Conclusion

While we have only discussed the situation in New Jersey in this article, it’s highly likely that HR professionals in other states will face similar situations. In all instances, it’s advisable to move forward in a careful, considered manner with proper legal counsel, not only regarding policies, but also in each individual case.