On August 19, 2021, the New Jersey Cannabis Regulatory Commission (the Commission) issued long-awaited initial rules implementing the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (the Act), which Governor Murphy signed on February 22, 2021. The Act legalizes the use of recreational marijuana for adults over the age of 21 and creates many obstacles for employers seeking to maintain a drug-free workplace. The new rules deal almost exclusively with the provisions governing the recreational cannabis market, leaving many employer questions unanswered.
While the Act became immediately effective upon enactment in February, the general employment provisions of the Act were not operative until the Commission adopted initial rules. Now that those rules have been adopted, the provision of the Act stating “[n]o employer shall . . . take any adverse action against any employee . . . because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid” is now effective.
While the Act states employers may prohibit employees from using or possessing marijuana in the workplace or during work hours, it also prohibits employers from acting solely on the basis of a positive drug test. Employers may act if an employee comes to work impaired by marijuana. In order to demonstrate impairment, the statute requires an employer to both obtain the opinion of a Certified Workplace Impairment Recognition Expert (WIRE) to determine whether the individual is impaired at work and to test using scientifically valid testing methods.
Surprisingly, the regulations state only that, at this time, employers are not required to perform a physical evaluation until the Commission develops the standards for a WIRE certification. Notably, while no physical evaluation is required until the Commission promulgates additional regulations, the above-quoted provision precluding adverse action based solely on the presence of cannabinoid metabolites appears to still be in effect. We recommend that employers with reasonable suspicion and/or post-accident testing policies document their reasons for concluding an individual might be impaired at work as part of their testing program.
While marijuana testing remains permitted, absent reason to believe an individual may be impaired, an employer cannot take an adverse action based solely on a positive drug test, limiting the usefulness of pre-employment or random drug testing. Until the Commission issues further guidance, employers should proceed carefully in their application of drug-testing policies in the state and are advised to reach out to legal counsel for guidance.