ATTENTION NEW JERSEY EMPLOYERS: UPDATE ON WORKPLACE PROVISIONS IN NEW JERSEY RECREATIONAL MARIJUANA LAW

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As we reported, on February 22, 2021, Governor Murphy signed NJ A21 (the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”) and A1897/4269 that together provide various employment-related protections for adult recreational cannabis users, adding to the existing protections for registered users of medical cannabis. [Click here for our February 24, 2021 eAlert about these laws] The Act, however, states that some of those provisions would not become effective until the NJ Cannabis Regulatory Commission (“CRC”) adopted its initial rules and regulations for the Act.

On August 19, 2021, the CRC adopted its initial rules concerning the recreational use of marijuana. Unfortunately, with the exception of addressing the “physical evaluation” requirement under NJCREAMMA, the initial rules are silent as to the Act’s workplace provisions. Regarding the “physical evaluation” requirement, the CRC stated that “until such time that the Commission, in consultation with the Police Training Commission established pursuant to [the Act], develops standards for a Workplace Impairment Recognition Expert certification, no physical evaluation of an employee being drug tested in accordance with [the Act] shall be required.” As you may recall, the Act provides that, in addition to testing for the presence of cannabis metabolites in blood, urine, or saliva, employer drug tests must also include a “physical evaluation” to determine impairment. Pursuant to its initial rules, this physical evaluation, which must be performed by an individual certified as a “Workplace Impairment Recognition Expert,” is not yet in effect.

Given the lack of guidance that employers were expecting, it is unclear at this time as to what, if any, other employment provisions under NJCREAMMA are effective. It is recommended that employers review their drug testing policies and reach out to counsel before taking any adverse action based on a positive marijuana drug test or a marijuana-related conviction. We will continue to monitor for any new information from the State.

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