• Workplace Use/Possession Can be Prohibited. Employers may continue to prohibit the use or possession of marijuana during work hours, on employer premises and while using an employer's equipment or other property.


• Employers Should Update Their Drug-Free Workplace Policies. Employers may continue to take adverse employment action based on recreational marijuana use provided that a written policy is in effect to prohibit such use. The employer shall make such policy available to employees and each prospective employee at the time the employer makes an offer or a conditional offer of employment.


• A Written Policy is Not Required to Support Reasonable Suspicion Drug Testing. Employers are permitted to take adverse action or other employment action upon reasonable suspicion of an employee's use of cannabis while engaged in work responsibilities. Adverse action or other employment action is also permitted where the employer determines that an employee manifests specific, articulable symptoms of drug impairment while engaged in work responsibilities. Drug impairment may include: symptoms of speech or physical dexterity issues, a disregard for the safety of others, a disruption of production or manufacturing process, or carelessness that results in injury.


• Certain Industries are Expressly Exempt from Provisions Prohibiting Adverse Action Absent a Written Policy. Certain employers are able to claim exemptions under the law. These include employers whose primary activity is: mining, utilities, construction, manufacturing, transportation and delivery, healthcare or social services, educational services, national security, international affairs, and justice, public order or safety activities.


• Certain Positions are Also Expressly Exempt. Employees in certain positions are also expressly excluded from protections offered workers who engage in off-duty recreational marijuana use. Expressly exempt positions include, but are not limited to, positions regulated by the Department of Transportation (DOT), positions funded by federal grants, positions requiring supervision of children, medical patients or vulnerable persons, and positions with any potential health/safety impact (as determined by the employer). Individuals working in these positions are not entitled to legal protection for off-work marijuana use.

Myers alleges that his supervisor requested he submit to a random drug test. The plaintiff informed his supervisor that he would not pass the test as a result of cannabis use recommended by his physician to help manage Crohn's disease. Myers' test result was positive. Prior to being fired, he was afforded a brief window of time to supply the employer with confirmation from his physician stating that he was using marijuana medicinally.

While Myers had "started the process of registering with the Cannabis Regulatory Commission," he contends that New Jersey's cannabis regulatory act (which was signed into law in late February) should have protected him from losing his position.

"Plaintiff's use of marijuana at the time he was subjected to a random drug test was legally permissible in the state of New Jersey regardless if he had a medical card, documented medical authorization, or even if he was using it recreationally (although plaintiff unequivocally used marijuana for medicinal purposes associated with his Crohn's disease)," Myers said in his suit.

Employers are encouraged to review the legal conditions of all three acts laws cited in this article to ensure alignment with internal policies regarding drug screening.