Pub. 20 2021-2022 Issue 2

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S 19 new jersey auto retailer W W W . N J C A R . O R G Employee Protections and Employer Requirements: Updating the Workplace after New Jersey’s Legalization of Marijuana BY JENNIFER ROSELLE, ESQ. On Feb. 22, 2021, New Jersey joined over a dozen other states in legalizing the adult use of cannabis. This change came 10 years after New Jersey legalized marijuana use for medicinal purposes. The new law, entitled New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act , permits the use and possession of regulated cannabis for adults 21 years and older and establishes parameters for cannabis-related businesses. Now that the initial excitement over this change has settled, motor vehicle dealerships wonder how the law will impact their workplaces, policies, and employees. Marijuana: Federal and State Law Many states have legalized cannabis use for either recreational or medicinal purposes; however, the federal government still criminalizes its use and possession. Marijuana remains a Schedule 1 drug under the Federal Controlled Substance Act. Legislation to legalize marijuana, recently introduced on the federal level, may signal a changing attitude toward cannabis’ placement on the Controlled Substance Act. Even so, since taking office, the Biden administration has not taken affirmative steps to change cannabis’ status, and the administration terminated five staffers for their prior marijuana use. It was also reported that dozens of staffers were suspended for similar behavior, even if they came from states where marijuana use is legal. Given the current differences from federal law, it is critical for dealerships to understand what is expected of them as New Jersey employers. Although the Cannabis Regulatory Commission regulations are not due until late summer, some employment protections in the law are already effective, ranging from the hiring process to workplace policies. In addition, recent case law expands an individuals’ rights to use (or not use) cannabis in certain circumstances. Medical vs. Recreational Marijuana Under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, adults 21 and over will be able to use cannabis for their own enjoyment. Dealerships are prohibited from taking adverse employment actions against employees simply because they elect to use ( or not use) cannabis. Likewise, dealerships are prohibited from relying solely on an employees’ positive drug test result for cannabis metabolites when taking an adverse action, such as discipline or termination. The advent of an adult-use marketplace is not the only reason individuals may use cannabis products. Dealerships must recognize that employees may also be prescribed cannabis for medical reasons. Importantly, an employee enrolled in the medical marijuana program is presumed to have a disability for the purposes of the New Jersey Law Against Discrimination (NJLAD) and/or the Americans with Disabilities Act (ADA). This means that, in addition to having additional procedural protections ( i.e., time to produce a prescription following a drug test ), dealerships must be prepared to engage in the so-called interactive process with employees who hold a medical marijuana card. This does not mean that dealerships must al low the employee to use medical marijuana during the workday or on dealership proper ty. It may, however, mean that dealerships MARIJUANA continued on page 22