Written by Joshua L. Weiner, Partner
On November 13, 2026, the ban on all sales of intoxicating hemp products such as Delta-8, Delta-9, and Delta-10 vapes, beverages, and gummies will go into effect in New Jersey. For many employers, this will trigger more than a need for retail compliance: it expands what constitutes a regulated “cannabis item” for workplace drug policy purposes as well as the private right of action employees may bring under the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA or the Act).
CREAMMA legalizes recreational cannabis for adults aged 21 and older in the State of New Jersey. Among its most significant provisions for employers, the Act prohibits adverse employment actions—including refusal to hire, termination, demotion, or other discipline—against employees or applicants based solely on their lawful, off-duty recreational use of cannabis. Starting in November, the statute will reach further than employers may be prepared for under the expanded definition of definition of “cannabis item.”
Critically, CREAMMA does not provide blanket protection for all cannabis-related conduct. The statute does not protect employees who use or possess cannabis in the workplace or who are under the influence during work hours. Employers retain the right to maintain drug-free workplace policies and prohibit cannabis use, possession, and impairment on the job. An employee who reports to work impaired by cannabis remains subject to discipline up to and including termination.
However, considering the evolving definition of cannabis products and pending changes in standards for WIRE certification, business owners and employers should take care to review their drug-testing protocols, impairment-documentation practices, and supervisor training in order to mitigate risk of liability.
A New Private Right of Action
The recent New Jersey Appellate Division decision in Sanders v. The Levari Group, LLC, significantly expanded employer risk under CREAMMA. The Court addressed whether employees may bring a private cause of action directly in court or whether enforcement is limited to administrative channels through the New Jersey Cannabis Regulatory Commission (CRC). The Court rejected the federal courts’ interpretation of the statute and held that CREAMMA implies a private right of action. This decision establishes that aggrieved employees and applicants may pursue claims directly in court, opening the door to private litigation and the full range of legal remedies, including monetary damages.
Challenges for Employers: Drug Testing and the WIRE Requirement
Although CREAMMA explicitly permits employers to drug test employees and applicants, due to the inherent unreliability of current cannabis testing methods, such testing must be accompanied by a physical evaluation to determine whether the individual is currently impaired due to cannabis use. These evaluations must be conducted by a certified Workplace Impairment Recognition Expert (WIRE).
Pursuant to CREAMMA, the CRC is charged with prescribing standards for WIRE certification. Such certifications may be issued to full-time or part-time employees, or to third parties contracted to perform services on behalf of an employer, provided they complete the requisite education and training in detecting and identifying an employee’s usage of, or impairment from, cannabis or other intoxicating substances. As of the date of this alert, the CRC has not yet issued formal WIRE certification standards.
In September 2022, however, the CRC issued interim guidance clarifying that, until formal WIRE certification standards are promulgated, employers may designate “sufficiently trained” staff members to assist in documenting observable physical and behavioral signs of impairment using a Reasonable Suspicion Observation Report developed and published by the CRC. Indicators may include, but are not limited to, the odor of marijuana, glassy or bloodshot eyes, slurred speech, diminished motor coordination, and impaired judgment. Employers should ensure that designated personnel receive training to identify cannabis-related indicators of intoxication and that such observations be thoroughly documented.
State vs. Federal Law
Despite New Jersey’s legalization, recreational cannabis remains classified as a controlled substance under the federal Controlled Substances Act. This creates a direct conflict that poses challenges for employers operating in both state and federal realm. Employers with employees who hold federally regulated licenses or certifications face a complex compliance environment. For example:
- Federal Contractors
Employers that perform work under federal contracts may be required to comply with federal drug-free workplace requirements. Because cannabis remains classified as a controlled substance under federal law, permitting employee marijuana use, in certain circumstances, could jeopardize an employer’s compliance with federal contractual obligations or other federally mandated workplace standards.
- Department of Transportation (DOT)-Regulated Positions
The U.S. Department of Transportation (DOT) enforces a strict zero-tolerance policy regarding cannabis use for all safety sensitive roles. Employees in safety-sensitive roles, such as commercial motor vehicle drivers and airline pilots, are subject to stringent federal drug-testing requirements. A verified positive drug test of an employee in a safety-sensitive position requires employers to comply with federal regulations, regardless of state cannabis laws.
CREAMMA Exception
CREAMMA contains a limited federal law exception to its general prohibition against taking adverse employment action based solely on a positive cannabis test. Specifically, when compliance with CREAMMA would result in a “provable adverse impact” on an employer subject to the requirements of a federal contract, then the employer may take adverse action against the employee consistent with federal law, rules, and regulations.
The federal law exception, however, is not automatic. An employer invoking the exception must be able to demonstrate that compliance with CREAMMA would specifically result in the loss of federal funding, the loss of a federal contract, or a violation of a binding federal statute, regulation, or contractual obligation. Given the fact-specific nature of this analysis, employers should consult experienced counsel to determine whether the exception applies in a particular circumstance and to ensure any employment action is legally defensible.
Best Practices: Focus on Performance
Given these complexities, employers are well-served by a straightforward guiding principle: to the extent possible, document and take action based on actual work performance deficiencies and observable conduct, regardless of whether the employer suspects the employee may be under the influence of cannabis. By focusing on objective, documented performance issues such as attendance problems, failure to meet job standards, safety violations, and quality of work deficiencies, employers can build a defensible record that does not depend on the outcome of a drug test or a WIRE evaluation.
With that said, employers should continue to monitor guidance from the CRC and remain vigilant for the issuance of WIRE standards. In the meantime, employers should ensure that designated personnel—typically managers and human resources staff—are adequately trained to identify cannabis-specific physical and behavioral indicators of impairment and to document their observations thoroughly. To the extent employers have not already done so, they should train supervisors and managers on CREAMMA protections and update workplace policies and drug testing protocols accordingly.
If you have questions on how these changes may affect your business, please contact Joshua L. Weiner, partner and Chair of A.Y. Strauss’ Labor & Employment practice group, for guidance on this complex and nuanced area of employment law; or contact Jennifer Cabrera and Sahar Ayinehsazian of A.Y. Strauss’ Cannabis practice group.
About A.Y. Strauss
A.Y. Strauss provides legal counsel for commercial transactions and litigation in the areas of real estate, construction, employment, cannabis, family law, environmental, and corporate bankruptcy. With the intellectual depth of a large firm and the personalized touch of a boutique, the firm’s lawyers handle a broad variety of matters for emerging businesses, institutional clients, and high net worth individuals.