Is a Positive Marijuana Test Enough to Fire an Employee in New Jersey? 2026 Federal Court Ruling Explained
Quick Answer
No — a positive marijuana drug test alone is generally not enough to terminate an existing employee in New Jersey under CREAMMA. The U.S. District Court for the District of New Jersey upheld an arbitrator's order requiring County Concrete Corporation to reinstate a terminated employee with back pay, seniority, and benefits after finding that the employer had not sufficiently established workplace cannabis use, possession, or impairment.
The lesson is not that New Jersey employers cannot act on marijuana use in the workplace. CREAMMA allows employers to maintain drug-free workplaces and take action when impairment is documented. The lesson is that a positive test result, standing alone, without contemporaneous and credible documentation of on-the-job impairment, is unlikely to survive legal challenge in New Jersey.
What Happened in the County Concrete Case
The U.S. District Court for the District of New Jersey in September 2026 upheld an arbitration award ordering County Concrete Corporation to reinstate an employee who had been terminated following a positive marijuana drug test. The employee had a prior positive test in 2023, and the employer operated a two-strike policy. When the employee tested positive a second time, the company terminated him.
The arbitrator who initially reviewed the case found that the employer had not sufficiently established workplace cannabis use, possession, or impairment. Three specific failures in the employer's case stand out in the record:
Three Things That Undermined the Employer's Case
- Marijuana odor as the primary impairment evidence: The employer relied substantially on observations of marijuana odor — one of the listed indicators under CREAMMA — but odor alone is generally insufficient to establish workplace impairment. Cannabis metabolites remain detectable in urine for days or weeks after any psychoactive effects have ended. Smelling marijuana on an employee does not establish that they were impaired during work hours
- Documentation that arrived more than a week late: The impairment observations were documented on the same day the positive test result arrived — more than a week after the observations were allegedly made. Contemporaneous documentation is critical under CREAMMA. A written record created after the fact, on the day a positive test result arrives, raises serious credibility questions about whether the employer was building a case around the test result rather than documenting what was actually observed
- Untrained observers: The individuals who made the impairment observations were not trained in drug-impairment recognition. New Jersey's Cannabis Regulatory Commission requires that reasonable-suspicion determinations involve trained supervisors who can identify specific, observable behavioral and physical indicators of impairment. Untrained observers reduce the credibility and defensibility of any impairment record
The federal court reviewed the arbitration award under the highly deferential standard that applies to labor arbitration decisions and declined to overturn it. The court did not reach a broad ruling about CREAMMA — it applied the narrow "draws its essence from the agreement" test for vacating arbitration awards and found that the arbitrator's decision met that standard.
It does not tell you the employee was impaired at work.
In New Jersey, those are two different legal questions.
What CREAMMA Actually Requires
New Jersey's Cannabis Regulatory, Enforcement Assistance, and Market Modernization Act (CREAMMA) bars employers from taking adverse employment action solely based on an employee's off-duty cannabis use or a positive drug test for cannabis, absent evidence of on-the-job impairment. The statute expressly permits employers to prohibit cannabis use or possession during work hours and to act when impairment is documented — but the documentation must meet a specific standard.
The New Jersey Cannabis Regulatory Commission (CRC) has published guidance specifying that adverse employment action based on workplace cannabis impairment requires evidence-based documentation of physical signs or behavioral indicators of impairment observed during the employee's prescribed work hours. The CRC guidance identifies observable indicators that may include glassy or bloodshot eyes, slurred speech, diminished motor coordination, impaired judgment, and the odor of marijuana — but the full picture of observable indicators, not odor alone, is what the documentation standard contemplates.
How This Connects to Sanders v. Levari
The County Concrete case involves an existing employee in a reasonable-suspicion testing context — which makes it a natural companion to the pre-employment story DrugScreens.com covered in May 2026. In Sanders v. Levari (New Jersey Appellate Division, May 26, 2026), the court held that job applicants have a private right of action under CREAMMA to sue employers who rescind offers based solely on a positive cannabis test. The Sanders v. Levari ruling and what it means for New Jersey hiring policy is covered in detail in the earlier article.
Together, the two cases form a complete picture of New Jersey's 2026 cannabis employment landscape. For a broader overview of when New Jersey employers can still use urine and saliva drug tests under CREAMMA — including which testing occasions remain fully permissible — see our guide to New Jersey cannabis laws and employer drug testing. Sanders governs the hiring context — rescinding a job offer based on a positive test exposes employers to lawsuits. The County Concrete ruling governs the ongoing employment context — terminating an existing employee based on a positive test without documented contemporaneous impairment evidence is unlikely to survive arbitration or litigation.
What New Jersey Employers Should Change Right Now
New Jersey Employer Action Checklist — Post County Concrete
- Train supervisors in impairment recognition now: The County Concrete case failed in part because the observers were not trained. New Jersey employers should ensure that every supervisor who may be called on to make a reasonable-suspicion assessment has completed documented impairment-recognition training before that situation arises
- Document observations contemporaneously: Write it down the same day — ideally within the hour. Documentation created a week later, on the day a positive test arrives, invites the inference that it was reverse-engineered from the test result rather than independently observed
- Separate the test from the termination decision: The positive test result should not be the triggering document for the adverse action decision. The documented impairment assessment should be. The test corroborates the impairment record — it does not create it
- Review your written policy: Policies that say a positive cannabis test is grounds for termination without reference to the documented-impairment requirement are legally exposed under CREAMMA. Update the policy language to reflect what the law actually requires
- Evaluate whether THC belongs in your panel: Some New Jersey employers are concluding that the legal complexity of THC testing under CREAMMA, combined with the hiring friction of a positive THC result in a cannabis-legal state, makes removing THC from the panel a simpler operational answer. Consult qualified counsel on whether that fits your written policy and industry
- Consult qualified employment counsel before taking any adverse action involving a cannabis-positive result for an existing New Jersey employee
Drug Testing and the THC Decision in New Jersey
The County Concrete case reinforces what DrugScreens.com has been covering throughout 2026: in New Jersey, "Do we test for THC?" is a policy and legal question, not an automatic checkbox. Employers who do include THC in their panel need contemporaneous, trained, documented impairment evidence before they can act on a positive result. Employers who remove THC from their panel eliminate that legal complexity entirely while continuing to test for opioids, cocaine, amphetamines, fentanyl, benzodiazepines, and other substances.
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Shop 6-Panel SalivaThis content is provided for general informational purposes only and does not constitute legal advice, regulatory guidance, or IRB or compliance consultation. DrugScreens.com supplies drug screening devices and does not provide laboratory services, medical diagnostics, IRB guidance, or drug testing program administration. Research teams should consult with their IRB, institutional compliance office, principal investigator, and qualified legal and regulatory counsel before implementing any drug screening protocol.
