Drug testing – New Jersey to temporarily waive physical examination requirement

Earlier this month, the New Jersey Cannabis Regulatory Commission finally released its long-awaited list of personal-use cannabis rules. The publication of these rules provides adults aged 21 and over with information about the legal use of cannabis, but more importantly, the adoption of these rules also means that the rules related to employment under the aid New Jersey’s Cannabis Regulatory Enforcement and Market Modernization Act (NJCREAMMA) are also now in effect.

NJCREAMMA offers a number of employment protections for workers who use cannabis recreationally. Specifically, NJCREAMMA prohibits employers from taking adverse action against an employee solely because of their cannabis use.

These rules also established the rights of employers to perform cannabis tests on applicants and employees in specific situations. In addition, the law provides specific and somewhat onerous requirements for these tests. NJCREAMMA provides that a physical examination must be performed by a trained and certified Work Impairment Recognition Expert (WIRE).

A workplace IDF must be certified to meet the standards that the New Jersey Cannabis and Regulatory Commission will provide with assistance from the Police Training Board. However, until these standards are published, employers are not required to perform these physical exams in order to perform tests for cannabis.

The recently published personal use of cannabis rules were intended to provide more clarity on many aspects of protections and employment requirements for drug testing. However, this was not the case. The rules focus primarily on licensing standards for businesses dealing with cannabis and the rules of fairness and safety in the cannabis market.

This leaves a lot of confusion regarding these new requirements, such as the conditions under which an employer can take adverse action in the event of poisoning in the workplace. It appears that the rules against adverse action against employees and applicants based solely on the results of a cannabis test are still in effect even though employers are not required to perform a physical exam.

This may require employers to document the reasons why they believe an applicant or employee may be impaired and to take precautions during post-accident investigations to include this documentation as part of the procedures.

It is not known when WIRE certification rules will be provided or additional guidance for drug testing by employers under the NJCREAMMA. Employers should review their current testing policies to ensure compliance and keep abreast of further developments regarding these rules.