August 24, 2021

NJ Cannabis Regulatory Commission Presses Pause on Physical Evaluation Requirement for Drug Testing

As we discussed in a previous alert, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) brought new employment protections for job applicants and employees who lawfully use cannabis off-duty. In addition, CREAMMA preserved an employer’s right to conduct drug testing of its workforce, but added a new requirement: testing for suspected use of cannabis must be accompanied by a physical evaluation to determine the employee’s level of impairment while engaged in performing job duties, as conducted by an individual certified to opine on the employee’s state of impairment.

The employment protections under CREAMMA became enforceable as of August 19, 2021, when the New Jersey Cannabis Regulatory Commission (the Commission) issued its first set of Personal Use Cannabis Rules (N.J.A.C. 17:30). The Commission’s initial rules relate to the licensing of cannabis businesses (such as cultivators, manufacturers and retailers); address equity, safety and facilitating access to the market; and confirm municipalities’ legal authority to shape legalized cannabis use within their communities.

Notably, the new rules also confirm that the Commission has not yet adopted standards for a Workplace Impairment Recognition Expert (WIRE) certification program, and until such time that the Commission develops such standards, in consultation with the Police Training Commission, no physical evaluation of an employee being drug tested in accordance with CREAMMA shall be required. We anticipate that the testing requirements will be addressed in subsequent regulations. As a reminder, once implemented by the Commission, the WIRE certification can be issued to employees and/or third-party contractors based on their completion of the training program, and any subsequent drug testing will need to include a physical evaluation to assess on-the-job impairment by a WIRE certified individual.

For now, New Jersey employers can no longer rescind a conditional job offer or discharge an employee because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items (i.e., based solely on a positive THC drug test result for cannabis). Therefore, employers should consider reviewing and updating their pre-employment screening procedures and drug testing policies for compliance. Although the requirement to conduct a physical examination was temporarily delayed by the Commission, employers who conduct drug testing should still take steps to document any objective signs indicating on-the-job impairment based on reasonable suspicion of impairment or following a workplace accident and consult with employment counsel before taking any adverse employment action.

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