The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, P.L. 2021 c.016, often referred to as CREAMMA, has decriminalized the adult use of cannabis since February 2021. The law, among many things, constrained employer drug testing of employees on the premise that the permissible, “adult” use of cannabis would trigger positive cannabis test results, even if the employee was not impaired, because these tests—particularly urine tests—generally detect cannabis for up to 30 days after the person’s use. More than thirty years prior, the U.S. Supreme Court had opined that the deterrent effect of cannabis testing was a sufficient basis to uphold mandatory drug testing of railroad employees. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 633 (1989) (“the FRA regulations are designed not only to discern impairment but also to deter it”). Now, the social assessment of cannabis use has changed, at least according to New Jersey government, and CREAMMA included provisions designed to limit testing to only those employees identified as potentially under the influence at the time of the drug test.

The law accomplishes this in an interconnected way. Its relevant provision, NJSA 24:6I-52(a)(1), begins by prohibiting an employer from taking an “adverse action” against an employee “solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid from engaging in conduct permitted” by CREAMMA, i.e., adult use of cannabis....

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