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New Jersey Cannabis Commission Gives Employers Who Drug Test A Reprieve on Physical Examination Requirement

Date   Aug 20, 2021

As we previously discussed here, New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”) contains several protections for New Jersey employees who use recreational cannabis, while also reserving for employers the right to drug test under certain conditions. The most controversial twist in CREAMMA is that drug tests of employees and applicants must be accompanied by a “physical examination” conducted by a person who has been certified to recognize drug impairment. The New Jersey Cannabis Regulatory Commission (the “Commission”) was tasked with establishing a Workplace Impairment Recognition Expert (“WIRE”) certification program to train and certify persons to conduct these “physical evaluations” on behalf of employers. The Commission has until August 21, 2021 to implement CREAMMA regulations.

Two days ahead of schedule, on August 19, 2021, the Commission published its Initial Rules for the Personal-Use of Cannabis (“the Initial Rules”). The Initial Rules address a number of issues meant to lay the groundwork for the nascent adult-use industry in New Jersey, including equity and safety, facilitation of access to the market by small business entrepreneurs, and confirmation of municipalities’ roles in the new cannabis market.

What the Initial Rules do not contain are answers to the many open questions CREAMMA has created in its wake for New Jersey employers who drug test employees and applicants. There is, however, one silver lining: the Commission has put the “physical examination” requirement on hold – at least for now. The Initial Rules state:

“Notwithstanding the provisions of [CREAMMA], until such time that the Commission, in consultation with the Police Training Commission…, develops standards for a Workplace Impairment Recognition Expert certification, no physical evaluation of an employee being drug tested in accordance with [CREAMMA] shall be required.”

This reprieve is undoubtedly welcomed by New Jersey employers. It is unknown, however, how long it will last. We also do not know whether the Commission will provide greater clarity to some of the remaining open questions inherent in CREAMMA’s workplace protections in its next round of Rules. Given the unknowns that still exist, we recommend any employer with employees working in New Jersey speak with employment counsel to thoroughly review their policies and practices surrounding cannabis use and drug testing.

If you have any questions regarding this Alert, please contact the author, Keya Denner, kdenner@fordharrison.com, partner in our Berkeley Heights and New York City offices and co-chair of FordHarrison’s Cannabis law group. Of course, you can also contact the FordHarrison attorney with whom you usually work.