Can a New Jersey employer still drug test for marijuana?

Luman Group · Published November 13, 2026

What does New Jersey's cannabis law say about employers?

New Jersey made adult cannabis use legal in 2021. The law is called the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, or CREAMMA for short. One section of it, N.J.S.A. 24:6I-52, is written for employers.

Here is the core rule, in plain words. An employer may not refuse to hire someone, fire them, or take any other adverse action against them because they use cannabis, or because they do not. An adverse action means anything that hurts the person at work: a withdrawn offer, a write-up, a demotion, lost shifts.

The law also says you cannot act against an employee solely because a test finds cannabinoid metabolites in their body. Metabolites are what the body leaves behind after cannabis wears off. They can stay in urine long after any effect is gone, so a positive result shows that someone used cannabis at some point. It does not show that they were impaired on your shift.

That is the shift most owners miss. The question in New Jersey is no longer "did they use?" It is "were they impaired at work, and can you show it?"

When can a New Jersey employer drug test for marijuana?

CREAMMA keeps drug testing legal. The same section lists the times an employer may test:

• On reasonable suspicion that an employee is using cannabis while working
• When you see signs that someone is intoxicated on the job
• After a work-related accident
• At random
• As part of pre-employment screening
• As regular screening of current employees

You may also keep a drug-free and alcohol-free workplace policy. Nothing in the law makes you allow cannabis use, possession or impairment at work. An employee who shows up impaired, uses on a break, or keeps cannabis in the stockroom can still be disciplined under your policy, up to and including termination.

What changed is what a test result can do on its own. The law says a test should use a scientifically reliable, objective method and include a physical evaluation to decide whether the person is impaired. The test result and that evaluation together may then be used to decide on discipline.

What is a WIRE, and what do I do until one exists?

The physical evaluation in the law is meant to be done by a Workplace Impairment Recognition Expert, called a WIRE. This is a person, on your staff or from outside, trained to spot signs of impairment. The law told the New Jersey Cannabis Regulatory Commission to create the WIRE certification standards.

As of mid-2026, those standards had still not been issued. So in September 2022 the Commission put out interim guidance for employers. It stays in place until the WIRE rules arrive. The main points:

• Employees cannot be acted against just because cannabis is present in their body.
• Employers may still drug test based on reasonable suspicion of impairment.
• Employers can name staff members who are trained to notice and write down signs of impairment.
• The Commission published a template called the Reasonable Suspicion Observation Report for writing those observations down.

The signs on that report include things like the smell of marijuana, glassy or bloodshot eyes, slurred speech, poor coordination and poor judgment. The form is not only about cannabis, so the people filling it in need to know what to look for.

What this looks like on a real shift

Say a shift lead at a care home or a restaurant notices a cook slurring words and fumbling knives during the dinner rush. Under the interim guidance, the shift lead writes down what they saw, when, and who else saw it, on the observation report or your own version of it. Then you test. A positive test plus that written record is a decision you can stand behind. A positive test from a random screen, with no signs of impairment on the job, is not.

Can a job applicant sue over a failed marijuana test in New Jersey?

For a while, employers were not sure. CREAMMA lists the rights but does not spell out who can sue. In 2024 a federal appeals court, the Third Circuit, ruled in Zanetich v. Wal-Mart that the law did not let applicants bring their own lawsuit.

Then on May 26, 2026, the New Jersey Appellate Division decided Sanders v. The Levari Group, LLC. The facts are ordinary, which is the point. A woman was offered a customer service job. A pre-employment drug test found cannabis metabolites, and the employer withdrew the offer. She said she used cannabis legally on her own time and was not impaired.

The court held that CREAMMA does let applicants and employees sue an employer directly over adverse action based on lawful cannabis use or metabolites in a test. It said it was not bound by the federal court's reading of New Jersey law.

For a small business, that means a withdrawn offer after a positive test, with nothing else behind it, can now become a lawsuit in a New Jersey court. Employers are watching to see whether the New Jersey Supreme Court takes up the question. Until it does, plan as if the Sanders ruling is the rule.

Are there jobs where the old rules still apply?

Yes, in two main cases.

• Federal contracts. If following CREAMMA would cause a provable adverse impact on your federal contract, the law lets you revise your rules to follow federal law instead. This is narrow. You would need to show a real loss of federal money or a binding federal requirement, so talk to an employment attorney before you rely on it.
• Federally regulated safety jobs. U.S. Department of Transportation drug testing rules, for example for commercial drivers, still apply no matter what New Jersey law says. A positive test in those roles still takes the person off safety-sensitive work under the federal process.

The law also says plainly that nothing in it permits driving while impaired by cannabis.

What should a small New Jersey employer change now?

Luman Group focuses on owners who run hourly, shift-based teams in healthcare, senior living, home care, hospitality and retail. If your drug policy was written before 2021, it likely needs a fresh look. A short checklist:

1. Read your drug policy and your offer letters. If either says a positive marijuana test means an automatic no-hire or firing, it is out of date. If your offer letters list drug screening as a contingency, the free offer letter generator and guide shows what a clear contingency section looks like.
2. Keep the drug-free workplace rule. Make it about use, possession and impairment at work, not about what people do on their own time.
3. Name and train your observers. Pick the managers or shift leads who will document signs of impairment, and train them on the Commission's observation report.
4. Write it down every time. What was seen, when, by whom. Act on the record, not on a hunch.
5. Be consistent. Handle the same facts the same way for everyone. Our guide on how to fire an employee without getting sued walks through why consistency and documentation matter so much.
6. Check for federal duties. If you have DOT-covered drivers or a federal contract, review those rules separately.

Drug testing and the marijuana protection laws are part of Class 1 of the Luman Group live HR workshops, alongside background checks, ban-the-box laws and onboarding. The New Jersey HR page covers the other state rules that catch hourly employers most often.

This post is general HR information from Luman Group, not legal advice. Luman Group is not a law firm. For your own situation, talk to an employment attorney.

Want help with your testing policy?

If you want Meghan Davey, SPHR, to look over your drug policy, your offer letters or a situation in front of you right now, call or text (929) 459-7160, or send the form on the contact page. HR on Call clients can send documents for review before they go out.