Four Years Have Gone Up In Smoke Since Nj Legalized Recreational Cannabis And The Rules On Testing Are Still Hazy

In the blink of a bloodshot eye, four years have passed since the enactment of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (the “CREAMM Act”). The law legalized adult recreational cannabis use and added to existing protections for registered users of medical cannabis under the Jake Honig Compassionate Use Medical Cannabis Act (the “Honig Act”). Since then, what have we learned about an employer’s ability to test for cannabis use? To be blunt, the issue remains baked in a cloud of uncertainty. To clear the air, let’s weed through what we do know about cannabis testing under the Honig Act and the CREAMM Act.

Overview: Honig Act and CREAMM Act

Enacted in 2019, the Honig Act prohibits employers from taking adverse employment action against applicants and employees based solely on their status as a medical cannabis patient registered with the newly established Cannabis Regulatory Commission (see HERE). Two years later, Governor Murphy signed the CREAMM Act, which, among other things, prohibits employers from taking adverse employment action against applicants and employees based solely on a positive cannabis test result (see HERE).

Under both laws, employers may prohibit cannabis possession or use during work hours or in the workplace and are not required to take any action that would violate federal law or result in a loss of a federal contract, funding, or licensing-related benefit. The laws both also allow employers to test applicants and employees for cannabis use. However, the basis and requirements for testing – and what employers may do following a positive result – differ under each law.

Testing Requirements: Honig Act

Generally, the Honig Act allows employers to test applicants and employees for cannabis use. If an individual tests positive for cannabis, employers must provide the individual with written notice of the opportunity to present a “legitimate medical explanation” for the result, such as an authorization for medical cannabis issued by a health care practitioner or proof of registration with the Cannabis Regulatory Commission, or both. Within three working days of the notice, the employee or applicant may submit information to explain the positive test result or may request a retest of the original sample at their own expense.

Testing Requirements: CREAMM Act

Under the CREAMM Act, employers are permitted to test applicants for cannabis use in pre-employment screenings. After hire, however, employers may test employees for cannabis only under the following conditions: (1) upon “reasonable suspicion” that the employee used cannabis while performing work responsibilities, (2) upon finding “observable signs” of cannabis impairment, (3) following a work-related accident subject to investigation by the employer, or (4) as part of a random drug test program or regular screening to determine use during work hours.

The law specifies that drug tests for applicants and employees must include a (1) scientifically reliable objective testing method, and (2) a physical evaluation to determine the current state of impairment. Under the Act, physical evaluations must be conducted by a certified “Workplace Impairment Recognition Expert” (“WIRE”); but, as further discussed below, this requirement remains suspended pending issuance of standards by the Commission.

What Do We Know About Cannabis Testing Today?

Despite the passage of time, testing requirements and limitations under each law – and between the two laws – remain hazy for practitioners, employers, and even the courts (see HERE). For example, does the CREAMM Act’s blanket prohibition on adverse action for off-duty cannabis use moot the Honig Act’s post-positive test procedure? What, if any action, can an employer take in response to a positive pre-employment test? And while both laws allow testing to detect cannabis use during work hours, how can an employer determine whether a positive test resulted from use during work hours or while off duty? And what about that WIRE certification standard for physical evaluations under the CREAMM Act?

As we previously reported HERE, in September 2022, the Commission attempted to clear the smoke by publishing non-binding Guidance on “Workplace Impairment,” which added minimal insight and mostly reiterated testing limitations under the law. The document did, however, provide a “Reasonable Suspicion” Observation Report template for use when documenting evidence of an employee’s impairment during work hours. The Commission advised employers to establish a Standard Operating Procedure to complete the Report which, when combined with a scientifically reliable objective testing method, may be sufficient to support an adverse employment action.

Although the document was intended to serve as guidance only until WIRE certification standards were issued, nearly two years later, the Commission has yet to issue any standards or additional guidance. While the Commission takes its time, applicants and employees have wasted no time in suing employers and potential employers for alleged violations of the law. With the CREAMM Act lawsuits preceding any additional direction from the Commission, employers have been left in limbo on cannabis testing. As a result, it has become increasingly common for employers to eliminate cannabis from their standard drug test panel – even for applicants and employees performing safety-sensitive functions.

As we await further developments, employers should carefully consider their basis for cannabis testing and any adverse action they may take following a positive cannabis test result.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.