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New Jersey Recreational Cannabis: Drug Testing Impacts March 2021

2020 brought about many changes to drug testing, including the passing of recreational cannabis use in New Jersey via ballot initiative. On February 22, 2021, Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA).[1]

Under NJCREAMMA, employers cannot refuse to hire any person or discharge or take any adverse action against an employee (with respect to compensation or any other terms and conditions of employment) because they do (or do not) use cannabis products outside of work. Moreover, the law explicitly protects employees from being subject to any adverse employment action solely because they have tested positive for cannabinoid metabolites or admit having engaged in the use of marijuana or marijuana products under the law. At the same time, the statute affirms employers’ rights to maintain a drug- and alcohol-free workplace, to prohibit employees from using, consuming, being under the influence of, or possessing marijuana or marijuana products in the workplace or during work hours.

Under NJCREAMMA, employers may require employees to submit to drug tests under the following circumstances: (a) upon suspicion of cannabis use while the employee is engaged in the performance of their work responsibilities; (b) upon finding any observable signs of intoxication related to usage of a cannabis item; or (c) following a work-related accident (subject to investigation by the employer). Employers may also utilize random drug testing, pre-employment screening or routine testing of current employees to determine cannabis use during an employee’s working hours. However, it is unclear how an employer may act upon test results if it cannot act solely on the basis of a positive drug test. It is hoped the regulations will provide further clarification.

In the NJCREAMMA, “drug test” is also redefined to mean a process using (a) “scientifically reliable objective testing methods and procedures,” such as blood, urine or saliva tests; and (b) a physical evaluation by an individual certified as a Workplace Impairment Recognition Expert (“WIRE”).  If both the WIRE and drug test indicate that an employee is under the influence in the workplace or during work hours, an employer may take an adverse action. The commission will be responsible for creating a curriculum to train individuals to become certified WIREs.

Unfortunately, many questions remain unanswered and additional questions are created by the language of NJCREAMMA.  Hopefully, future regulations may clarify whether there are exemptions for safety-sensitive positions and other similar concerns.

 The foregoing commentary is not offered as legal advice but is instead offered for informational purposes.  First Advantage is not a law firm and does not offer legal advice.  The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice.  First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information.  Regulatory developments and impacts are continuing to evolve in this area.

[1] Sources:  Current Consulting Group and the law

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