Recreational cannabis sales can be made in New Jersey starting today. Auto dealers have been anticipating guidance from the state after the passage of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA). This law will affect the operations of dealerships as they aim to strike a balance between adhering to the law and keeping a drug-free workplace.
NJ CAR has previously provided guidance to help dealers prepare to comply with the law. This article reiterates some of the important provisions of the NJCREAMMA and suggests minimum steps to be taken for compliance. NJCREAMMA provides that employers cannot consider the fact that an individual uses of does not use cannabis as a determining factor during the hiring process or during discipline of an employee. Furthermore, the new law specifies that an employee cannot face adverse action by an employer solely due to testing positive for cannabis.
Dealerships can continue to maintain a drug and alcohol-free workplace and are not forced to permit or accommodate legal cannabis activity in the workplace. Furthermore, employers can still implement policies prohibiting the use of cannabis items or intoxication by employees during work hours. The law also provides flexibility to employers subject to the requirements of a federal contract by allowing revision of their employee prohibitions.
Dealerships may require a drug test as part of a pre-employment screening, require random drug tests of employees generally, or conduct regular screenings of current employees during their work hours. Dealerships may also require an employee to undergo a drug test if, (1) there is reasonable suspicion to believe that an employee is using cannabis items during work hours, (2) observation is made of signs of usage of cannabis items, and (3) following a work-related accident subject to investigation by the employer. Dealerships may use the results of the drug test when deciding the appropriate disciplinary action. However, it should be confirmed whether an employee uses cannabis for an authorized medical purpose.
The law creates a Workplace Impairment Recognition Expert Certification (WIRE) and enables employers to have a full or part-time employee certified in detecting and identifying employee usage of cannabis items or other substances or contract with independent vendors to provide the service. The section of the law that governs employer/employee conduct is effective immediately, however, the use of the WIRE is not operational until rules and regulations are adopted pursuant to the law. The New Jersey Cannabis Regulatory Commission has not issued any regulations concerning the use of the WIRE.
Dealerships should discuss the following with their attorneys and Human Resources professionals to comply with the law until guidance is provided by the state:
- Update employer policies to make sure that there is no discrimination during hiring and that discipline is not based solely on an employee’s legal use of cannabis.
- Modify, as needed, current drug-free workplace policy. Cannot be a one-size-fits-all policy.
- Train management on the new law as it applies to non-discriminatory provisions and the requirements for reasonable suspicion of employees under the influence of cannabis at work.
- Develop or enhance current drug-testing protocols and decide whether to have designated employees certified to become Workplace Impairment Recognition Experts or, in the alternative, contract with a vendor when the program becomes operational.