The legal status of cannabis has gone through a number of changes in recent years, at least at the state level. Cannabis remains illegal under federal law. Medical use of cannabis has been legal under New Jersey law, however, for over a decade. A state law allowing limited possession and use for recreational purposes took effect in 2021. These changes impact New Jersey employment laws with regard to issues like mandatory drug testing, drug-free workplaces, and the use of a now-legal substance by employees outside of work hours. In October 2022, the White House announced that the president would be issuing pardons for people with federal convictions for simple cannabis possession. This raises questions about how New Jersey and federal laws relating to the use of criminal history in employment decisions will affect pardoned workers.
New Jersey Criminal History Discrimination
Criminal history is not a protected category under federal or state employment discrimination laws. Workers who have arrest or conviction records do, however, have some protection during the job application process. Many employers have tried to screen applicants with criminal records, even if an applicant’s particular history would have no bearing on the job they are seeking. This makes it all but impossible for thousands of people to find work.
Under the Opportunity to Compete Act (OTCA), New Jersey employers may not ask job applicants about criminal history at the beginning of the hiring process. The statute allows employers to make inquiries about criminal history once an applicant has completed an initial interview. Exceptions apply for certain jobs, such as law enforcement or professions where another state or federal law requires a criminal background check.
New Jersey Cannabis Laws
The state first authorized medical cannabis in 2009, but the original statute was ambiguous about employees’ rights. In 2019, the New Jersey Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA). Section 9 of that law specifies that employers may not take adverse employment actions based solely on an employee’s status as a medical cannabis user.
The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) took effect in early 2021. It allows adults to possess small amounts of cannabis for recreational use. Section 48 of the statute addresses employment discrimination based on legal cannabis use. Employers may not take adverse actions against an employee based solely on their use or non-use of cannabis outside of the workplace.
Federal Pardons
The presidential proclamation issued on October 6, 2022 pardoned all federal convictions for simple marijuana possession, as well as all cases that were still pending on that date. It does not apply to convictions involving any controlled substance other than cannabis, including cases that involved cannabis and other substances. It also does not apply to state cases involving cannabis possession.
Individuals receiving a pardon do not have to disclose the arrest or conviction for the pardoned offense during the hiring process. Employers may still be able to learn about the pardoned offense through other means. The OTCA, however, specifically states that employers may not refuse to hire an applicant based on a pardoned conviction.
New Jersey employment laws protect a wide range of rights for workers. If you have experienced an unlawful employment practice, you need a skilled legal advocate who can help you assert your rights. The employment attorneys at the Resnick Law Group represent workers in New Jersey and New York. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to see how we can assist you.