On September 9, 2022, the New Jersey Cannabis Regulatory Commission (the “Commission”) issued guidance for employers on how to evaluate suspected cannabis impairment in the workplace. Although the guidance leaves some questions unanswered, it should provide some comfort to employers operating in an uncertain legal landscape.
Under New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”), adopted in February 2021, employers are prohibited from taking adverse action against employees solely because they have cannabinoid metabolites in their bodily fluid from legal marijuana use. In other words, New Jersey employers cannot fire employees simply because they test positive for cannabis. At the same time, employers have the right to maintain a drug-free workplace and are permitted under the law to consider test results under certain circumstances. For example, a drug test is allowed if an employee exhibits “observable signs of intoxication” related to cannabis use and the ensuing test results can be used in determining the appropriate employment outcome.[i] This is often referred to as a drug test based on reasonable suspicion.
If performed, the drug test itself must also meet certain criteria. Among other things, the test must include a “physical evaluation in order to determine an employee’s state of impairment” that must be conducted by a certified “Workplace Impairment Recognition Expert” (“WIRE”).[ii] The CREAMMA newly created the WIRE role and tasked the Commission with issuing regulations for WIRE certification. A year and a half later, the Commission has not issued regulations for WIRE certification.
This month, the Commission published interim guidance to “clarify and explain” its understanding of CREAMMA’s requirements. According to the guidance, employers may “continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, like a drug test, to make the determination that an individual violated a drug free workplace policy.” The guidance reiterates that a positive drug test alone is insufficient to support an adverse employment action. However, “such a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action.”
In order to assist employers with establishing evidence based documentation, the Commission provides a sample “Reasonable Suspicion Observed Behavior Report.” The Commission states employers can utilize the form to document evidence that an employee is impaired by cannabis during work hours. The form, although not cannabis-specific, includes checklists of potential physical and behavioral signs of impairment, such as “flush/pale/sweaty face” and “agitated/insulting speech.” In addition, the form includes space for the evaluator to describe the employee’s behaviors and any explanation for the behaviors provided by the employee.
The Commission’s guidance states that, in conjunction with the report, employers may also:
- Designate an interim staff member, who is sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observed Behavior Report, to assist with making determinations of suspected cannabis use.
- Establish a Standard Operating Procedure for completing the Reasonable Suspicion Observed Behavior Report that includes either (a) both the employee’s manager/supervisor (or any manager/supervisor) and the interim staff member, or (b) if no interim staff member has been designated, two managers/supervisors.
- Use the following types of tests as physical signs to support a determination of reasonable suspicion: (a) a cognitive impairment test, (b) a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment, and/or (c) an ocular scan.
The Commission’s guidance leaves some open questions, such as what qualifies a person to complete the Reasonable Suspicion Observed Behavior Report, and whether there are any prerequisites to conducting the impairment tests. Although the guidance lacks specificity, it should provide some clarity to employers who have been operating in a relative vacuum since February 2021. First on employers’ to-do lists should be establishing a standard operating procedure for completion of the Reasonable Suspicion Observed Behavior Report, or a similar form, and developing adequate training for anyone assigned to complete it. As we await the Commission’s regulations with respect to WIRE certification, New Jersey employers should consult with their regular Saul Ewing attorney about the application of this guidance to their businesses.
[i] N.J.S.A. 24:6I-52a(1).
[ii] N.J.S.A. 24:6I-52a(1)-(2)(a).