As pro-cannabis legislation continues to spread across the United States, employers are faced with new workplace protections for off-duty cannabis use. New Jersey and California are the latest states to tackle this issue, and all eyes will be on regulators to see how they approach a question with no easy answer.

New Jersey’s recreational cannabis law, the Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act (CREAMMA), contains explicit workplace protections for employees who lawfully use cannabis and notably prohibits employers from taking any adverse employment action against an employee based solely upon the presence of cannabinoid metabolites in the employee’s bodily fluid. CREAMMA also incorporates the unique concept of a Workplace Impairment Recognition Expert (WIRE)—a person who is “certified” to opine on employee cannabis impairment.

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