Seyfarth Synopsis: As previously reported here, on February 22, 2021, New Jersey Governor Phil Murphy signed A21, the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (CREAMMA), which is enabling legislation for the amendment to the New Jersey Constitution making lawful the recreational use of marijuana in the state.

While the new law, among other things, allows employers to conduct numerous forms of drug testing for marijuana, the law limits an employer’s ability to rely on a positive marijuana test result in making employment decisions.  The 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 an employee’s state of impairment, or lack of impairment, related to the use of marijuana. The law tasked the Cannabis Regulatory Commission with adopting standards for a “Workplace Impairment Recognition Expert” (WIRE), who must be trained to detect and identify an employee’s use or impairment from marijuana or other intoxicating substances and to assist in the investigation of workplace accidents.

On August 19, 2021, the Commission published its “Personal Use Cannabis Rules,” which say virtually nothing about employer drug testing practices.  That said, according to the Commission, until it “develops standards for a Workplace Impairment Recognition Expert certification” in consultation with the Police Training Commission, “no physical evaluation of an employee being drug tested in accordance with [the new law] shall be required.”

It remains to be seen when the Commission will issue another set of regulations and whether they will clarify some of the law’s unanswered questions, most importantly how the law impacts employers with employees in safety-sensitive positions. Until then, New Jersey employers should consider working with experienced employment counsel to determine whether to (a) modify their drug testing practices, including the possibility of eliminating marijuana testing either pre-employment or for certain types of positions, (b) provide training to managers tasked with making reasonable suspicion determinations, and (c) determine the best person to serve as the employer’s WIRE.

We will provide an update once the Commission adopts additional regulations.