Can New Jersey Employers Drug Test for Marijuana in 2026? What Sanders v. Levari Means for Your Hiring Policy
The Sanders v. Levari Ruling — What the Court Decided
In Sanders v. The Levari Group, LLC (Superior Court of New Jersey, Appellate Division, decided May 26, 2026), a three-judge appellate panel reversed a lower court dismissal and held — as a matter of first impression — that New Jersey's Cannabis Regulatory, Enforcement Assistance, and Market Modernization Act (CREAMMA) provides an implied private right of action against employers that take adverse employment action based solely on a positive cannabis test.
The facts are straightforward. Darlene Sanders applied for a customer service position with The Levari Group, LLC. She interviewed, received a conditional job offer, and accepted. As part of the standard hiring process, she was required to complete a pre-employment drug test. Sanders tested positive for cannabis metabolites — indicating cannabis use within the prior 30 days. She stated she used cannabis recreationally and was not under the influence at any point during the hiring process. When Levari offered her the option to retest at her own expense within a limited timeframe, Sanders declined because she could not afford the cost. Levari rescinded the offer.
Sanders sued. The trial court dismissed her CREAMMA claim in April 2024, finding no private right of action existed under the statute and that her remedy was through the Cannabis Regulatory Commission — not the courts. Sanders appealed. On May 26, 2026, the Appellate Division reversed, applying the three-prong test from the U.S. Supreme Court's decision in Cort v. Ash, 422 U.S. 66 (1975), and holding that CREAMMA implicitly grants applicants and employees the right to sue employers in court for CREAMMA violations.
What CREAMMA Actually Says — and What It Means for Drug Testing
CREAMMA, signed into law on February 22, 2021, prohibits New Jersey employers from taking adverse employment action against applicants or employees based solely on their lawful off-duty cannabis use or a positive drug test for cannabis. The statute's core employment provision reads: "No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee … because that person does or does not … use cannabis items."
The critical word is solely. CREAMMA does not prohibit drug testing for cannabis. It does not require employers to hire cannabis users. It does not prohibit employers from maintaining drug-free workplace policies. What it prohibits is using a positive cannabis test result as the sole basis for an adverse employment decision — without additional evidence of workplace impairment.
What you do with the result is where the risk begins.
What New Jersey Employers Can Still Do
The Sanders ruling does not eliminate employer authority to maintain safe workplaces or enforce drug-free policies. New Jersey employers retain meaningful authority to respond to cannabis — the question is how that authority is exercised and what the written policy says about it.
What New Jersey Employers Can Still Do Under CREAMMA After Sanders
- Continue drug testing: Pre-employment, random, post-accident, and reasonable-suspicion drug testing for cannabis remains permissible — the Sanders ruling does not restrict an employer's ability to test. Browse CLIA-waived urine cups at DrugScreens.com
- Act on evidence of impairment: CREAMMA permits employers to take adverse action when an employee is impaired on the job or while performing job duties — a positive metabolite test alone does not establish impairment, but a Workplace Impairment Recognition Expert (WIRE) evaluation or direct behavioral observation may support an impairment finding
- Maintain safety-sensitive and zero-tolerance policies: Employers with legitimate safety-sensitive positions — DOT-regulated employees, operators of heavy machinery, healthcare workers, and others — retain authority to enforce zero-tolerance standards that comply with applicable federal requirements
- Enforce federal contractor and federal funding requirements: The federal contract and federal funding exception under N.J.S.A. 24:6I-51(b)(1) remains in place — employers subject to federal Drug-Free Workplace Act requirements are not required to permit cannabis use in violation of federal law
- Enforce policies against on-duty use or possession: CREAMMA does not require employers to permit on-duty cannabis use or the possession of cannabis in the workplace
The Federal-State Split — and Why It Matters for Multistate Employers
The Sanders ruling creates a direct split between New Jersey state court authority and federal court interpretation of CREAMMA. In Zanetich v. Wal-Mart Stores East, Inc., 123 F.4th 128 (2024), the Third Circuit — the federal appellate court that covers New Jersey — found no private right of action under CREAMMA. The New Jersey Appellate Division acknowledged that split in Sanders but held that New Jersey courts are not bound by the federal reading of a state statute. In New Jersey state court, the Sanders ruling now controls.
For multistate employers, this split is a practical compliance signal. A blanket "positive THC test equals automatic rejection" policy applied uniformly across all states creates materially different legal exposure depending on where the applicant is located. States are increasingly drawing a distinction between off-duty cannabis use and evidence of workplace impairment — and that distinction requires state-specific testing policies, not a single national THC rule.
What New Jersey Employers Should Do Now
The Sanders decision is a published, precedential opinion. It controls in New Jersey state courts unless and until the New Jersey Supreme Court weighs in. Employers who have not updated their marijuana testing policies since CREAMMA took effect in 2021 should treat the Sanders ruling as an immediate trigger for policy review.
New Jersey Employer Action Checklist — Post-Sanders
- Review your written drug testing policy: If your policy treats a positive cannabis test as automatic grounds for rescinding a job offer or taking adverse action, that policy now creates direct litigation exposure in New Jersey state court — it must be revised before your next positive result
- Separate the test from the decision: Your policy should distinguish between the testing process (which remains permissible) and the decision-making process (which must account for CREAMMA's prohibition on adverse action based solely on a positive result)
- Document impairment findings separately: If the basis for an adverse action includes evidence of workplace impairment — not just a positive metabolite test — document that evidence separately and contemporaneously with the decision
- Identify your safety-sensitive and federally regulated positions: These positions may support a more restrictive standard — but the policy must articulate why a position qualifies and what standard applies
- Audit your pre-employment process: The Sanders facts arose at the conditional-offer stage — a common pressure point where employers rescind offers after a positive drug test — your pre-employment process should be reviewed in light of the ruling
- Consult qualified New Jersey employment counsel: The Sanders ruling is recent and its implications for discipline and termination decisions — not just hiring — are still developing; policy changes should be reviewed by qualified legal counsel before implementation
Drug Testing in New Jersey — What Still Makes Sense
The Sanders ruling does not counsel against drug testing. It counsels against using a positive cannabis test as a reflexive, automatic trigger for adverse action without considering CREAMMA's requirements. A well-designed New Jersey drug testing program in 2026 still includes consistent point-of-care urine drug screening — it simply pairs that screening with a written policy that complies with CREAMMA and a decision-making process that does not rely solely on a positive cannabis metabolite result. For New Jersey employers who want to continue testing but remove THC from the panel entirely, non-THC drug test cups are a practical, legally defensible option — they detect cocaine, opiates, amphetamines, PCP, benzodiazepines, and other workplace substances without screening for cannabis metabolites at all. The NO-THC 5 Panel Rapid Cup and the NO-THC 11 Panel Cup are both CLIA waived and available in bulk at DrugScreens.com.
For New Jersey employers running safety-sensitive programs, DOT-regulated testing, or programs that qualify for the federal contractor exception, CLIA-waived multi-panel urine drug test cups remain the most practical on-site screening tool available. Our guide Non-THC Drug Test Panels Explained covers urine cups, saliva kits, and dip card options for employers who want to screen without testing for cannabis. DrugScreens.com carries SAFElife CLIA-waived urine cups in 5 through 16-panel configurations — including options that test for the full range of workplace substances while generating the documented presumptive result your program needs at the point of collection.
This content is provided for general informational purposes only and does not constitute legal advice. Any employer or organization considering changes to its workplace or in-house drug screening policies should consult with qualified legal counsel and applicable regulatory authorities before implementing, modifying, or discontinuing any testing program or related procedures.
