New Jersey employers seek workplace testing guidance as cannabis becomes legalized

Sep 21, 2021

Earlier this year, New Jersey Governor Phil Murphy signed A21, the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (CREAMMA), enabling legislation for the amendment to the New Jersey Constitution and, thereby, legalizing the recreational use of cannabis in the state.

Although the new legislation allows employers to conduct various forms of drug testing for cannabis, it also limits the employer’s ability to rely on a positive drug test result in making employment decisions. Furthermore, the new law requires that a drug test include both a “physical evaluation” and “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva.” The “physical evaluation” must be conducted by an individual certified to provide an opinion about the employee’s state of impairment, or lack of impairment, related to the use of cannabis.

The new law assigns the task of adopting standards for a “Workplace Impairment Recognition Expert” (WIRE) to the Cannabis Regulatory Commission. This will be an individual who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances, as well as to assist in the investigation of workplace accidents.

In August, the Commission published “Personal Use Cannabis Rules,” which do not cover employer drug testing practices. According to the commission, “no physical evaluation of an employee being drug tested in accordance with [the new law] shall be required” until it “develops standards for a Workplace Impairment Recognition Expert certification” in consultation with the Police Training Commission.

Currently, many New Jersey employers are waiting for the Commission to issue another set of regulations and clarify some of the law’s unanswered questions, including how the law impacts employers with employees in safety-sensitive positions.

According to the online repository of legal information JD Supra, until further clarifications and regulations are released, New Jersey employers should consider working with experienced employment counsel to determine whether to modify their drug testing practices, including the possibility of eliminating cannabis testing either for pre-employment or for certain types of positions. JD Supra also suggests seeking legal counsel to provide training to managers tasked with making reasonable suspicion determinations and identifying who will serve as the employer’s WIRE.