New Jersey Cannabis Regulatory Commission Temporarily Waives Requirement for Employers to Conduct Physical Examinations in Connection with Cannabis Drug Testing

On August 19, 2021, the New Jersey Cannabis Regulatory Commission (the “Commission”) published its long-awaited first set of Personal Use Cannabis Rules (the “Initial Rules”) regarding recreational cannabis use for adults age 21 and over under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”).  These Initial Rules largely address licensing standards for cannabis businesses and equity and safety issues in the new marketplace.  Significantly, however, the Initial Rules do not provide any additional clarity on the employment protections and employer drug testing requirements enacted under NJCREAMMA.

As we previously reported, NJCREAMMA provides various employment protections for employees who use cannabis recreationally.  Namely, NJCREAMMA prohibits New Jersey employers from taking any adverse employment action against applicants or employees based solely on their use of cannabis.  As a result of the publication of the Initial Rules, these employment protections became enforceable as of August 19, 2021.

Further, while NJCREAMMA codified an employer’s right to conduct cannabis drug testing of applicants and employees in certain circumstances, the law also imposed new onerous requirements on such testing.  Under NJCREAMMA, work-related cannabis testing must include a physical examination conducted by a Workplace Impairment Recognition Expert (“WIRE”), who must be certified in accordance with standards to be established by the Commission.  The Initial Rules state that until the Commission, in consultation with the Police Training Commission, develops such certification standards, employers are not required to conduct physical evaluations of employees for cannabis drug testing purposes.

It is unclear when the Commission will adopt WIRE certifications standards or when there will be additional regulations regarding the employment protections or drug testing requirements imposed by NJCREAMMA.  New Jersey employers should continue to stay up-to-date with any developments and consult with counsel to review drug- and alcohol-free workplace policies and drug testing protocols.