New Laws Target Age and Pot Use Discrimination

By Chakeema Cruickshank, Staff Writer

Age and Discrimination Laws

All workers are protected against discrimination in the workplace under the New Jersey Law Against Discrimination (LAD). This includes for protected characteristics such as race, religion, age, or sexual orientation, to name a few. This law was first enacted in 1945 and was the first anti-discrimination statute in the country. Since then, the law has been amended numerous times to provide greater protections to New Jersey workers. For example, this can include protections against COVID-19 discrimination – see our blog about that.

In regard to age discrimination, there is recent legislation that gives greater protections. The new law signed by Governor Murphy removes a section of the LAD that allowed employers not to hire or promote employees over 70 years old. It also removed the section that tenured professors at institutions of higher education must retire at 70.

In addition, this new law allows any individual to seek full remedies under the LAD if they can show they have faced age discrimination. There are now stronger protections to employees over the age of 70 that make it more difficult for employers to enforce mandatory retirements.

Recreational Cannabis Use and Discrimination

With cannabis use legalized in NJ, there is now discrimination protection for recreational use. Last year, Governor Murphy signed three different new laws. These formally recognize the legalization of recreational use. The “New Jersey Cannabis Regularly, Enforcement Assistance, and Marketplace Modernization Act” (the “Cannabis Act”) concerns the legalization for adults and each law targets a different aspect of decriminalization. The Cannabis Regulatory Commission (CRC), a five person council appointed by the Governor, is responsible for the regulation, oversight, and enforcement of recreational and medical use.

Another new law legalizes the possession of up to six ounces of cannabis. Moreover, this provides certain criminal and civil justice reforms. For example, this law in particular addresses the legal consequences associated with certain marijuana offenses. The bill prevents unlawful low-level distribution from being used in probation, pretrial release, and parole decisions. It also provides certain protections against discrimination in housing and employment. Lastly, this bill also will raise awareness of available expungement relief to reduce disparities.

The last bill in this package concerns penalties for underage consumption of cannabis and how police must interact with underage offenders. Under this law, a person under the age of 21 who committed a possession or consumption violation is instead subject to a point of violation warning or juvenile intervention. This is a petty disorderly persons offense. When the amount is more than a person of a legal age could possess, it is a disorderly persons offense.

What does this mean for employers?

The Cannabis Act contains has parts that will impact New Jersey employers. Under the Act, employers cannot penalize an applicant or employee for using cannabis. More specifically, this means that an employer cannot refuse to hire an applicant, terminate an employee, or take adverse actions against them, such as pay cuts.

Despite this, an employer can still opt to be a drug free workplace. Employers have a right to be a drug and alcohol free employer and may implement certain policies to prohibit cannabis use during work hours. Moreover, the Cannabis Act still allows drug testing. It can be used for pre employment, randomly, upon reasonable suspicion of use at work, or as a part of routine screening.

However, it is important to note that a positive test result is not sufficient to take an adverse action against an employee, like termination or suspension. The Cannabis Act requires that any employee drug test include “scientifically reliable objective testing methods and procedures,” such as testing of blood, urine, or saliva, plus a physical evaluation by a certified “Workplace Impairment Recognition Expert” (WIRE) to accurately determine an individual’s level of impairment. A WIRE may be an existing employee and the CRC has implemented training programs to help with detection.

What does this mean for employees?

This Act establishes nondiscrimination for recreational users. Under this Act, employers cannot discriminate against an individual because that person does or does not smoke, vape, or use cannabis. New Jersey’s Cannabis Act provides nondiscrimination protections for employees.

This is an important time for New Jersey businesses to review their policies, such as hiring and drug policies. For example, whether or not to continue pre employment drug testing. It is important for employers to be mindful of these changes as they make hiring decisions. The CRC continues to meet regularly, therefore, employers and employees should be aware of upcoming updates or regulations in the coming months.

Staff Writer Chakeema Cruickshank is currently a first year at Rutgers Law School Camden. Prior to Rutgers Law, she worked for United States Senator Robert Menendez doing constituent relations and outreach for education, environment, and technology.