Cannabis Testing Employees - The Haze Continues: Part I


The New Jersey Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (Cannabis Law) provides that employees may be tested for cannabis in the following circumstances:

  1. Upon reasonable suspicion of an employee's usage of a cannabis item while engaged in the performance of the employee's work responsibilities;
  2. Upon finding any observable signs of intoxication, related to the usage of a cannabis item;
  3. Following a work-related accident subject to investigation by the employer;
  4. Randomly; and
  5. As part of a pre-employment screening, or regular screening of current employees to determine use during an employee's prescribed work hours.

Additionally, the Cannabis Law contains restrictions regarding termination, providing that “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. “Therefore, in order for an employer to take an adverse action against an employee regarding suspected cannabis use, the employee must actually be impaired at work.” As such, as part of the drug testing process, a physical evaluation is required in order to determine an employee's state of impairment. The physical evaluation must be conducted by an individual with a Workplace Impairment Recognition Expert (“WIRE”) certification.

Regulations regarding the standards for the WIRE certification were anticipated, but so far have not been issued. The regulations state only that, “at this time, employers are not required to perform a physical evaluation until the New Jersey Cannabis Regulatory Commission (“CRC”) develops the standards for a WIRE certification.” However, this is a gray area for employers because even if the physical evaluation requirement is not enforced, the Cannabis Law states, “an employee cannot be subject to an adverse action solely due to the presence of cannabinoid metabolites in the employee's bodily fluid.” While no physical evaluation is required until the CRC promulgates related regulations, the provision precluding adverse action based solely on the presence of cannabinoid metabolites appears to still be in effect. Employers with reasonable suspicion and/or post-accident testing policies must document their reasons for concluding an individual might be impaired at work as part of their testing program.

Takeaway: 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 further guidance is issued, employers should proceed carefully in their application of drug-testing policies and are advised to reach out to legal counsel for guidance.

If you are an employer and need help navigating employee cannabis testing, contact Tracy Armstrong, Stephanie Gironda or any member of the Wilentz Employment Law Team. 

Tags: Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization ActRecreational Cannabis

*Cannabis Law Disclaimer: Per federal law, under the Controlled Substances Act, marijuana is categorized as a Schedule I controlled substance.  Possession, use, distribution, and/or sale of cannabis is a Federal crime and is subject to related Federal policy, regardless of any state law that may authorize certain marijuana activity.  Compliance with state marijuana law does not equal compliance with federal law.  Legal advice provided by Wilentz, Goldman & Spitzer, P.A. is designed to counsel clients regarding the validity, scope, meaning, and application of existing and/or proposed cannabis law. Wilentz, Goldman & Spitzer, P.A. will not provide guidance or assistance in circumventing or violating Federal or state cannabis law or policy, and any advice provided by Wilentz, Goldman & Spitzer, P.A. should not be construed as such.


The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services.  Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness.  The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  Readers should not act upon this information without seeking professional legal counsel.

This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk.  We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability.  Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein.  We will remove a link to any site from this blog upon request of the linked entity.

We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.

If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at  One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.

Sign Up

Tracy Armstrong Photo

Tracy Armstrong
Co-Chair, Employment Law Team