On September 9, 2022, the New Jersey Cannabis Regulatory Commission (CRC) released interim guidance for employers on employee cannabis testing. Since the legalization of recreational marijuana for adults 21 or older, employers in New Jersey must follow certain procedures associated with drug testing of employees based on reasonable suspicion of impairment. Employers have long awaited the enactment of regulations on how they can meet their compliance obligations. Until such regulations are enacted, the CRC guidelines offer employers an alternative option.
On February 22, 2021, Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act (CREAMMA).
CREAMMA established the framework for New Jersey’s adult cannabis industry and imposed certain obligations and restrictions on New Jersey employers with respect to drug testing. Among other things, CREAMMA prevents employers from taking adverse employment action against employees and/or job applicants. only because of a positive drug test for cannabinoid metabolites and prohibits discrimination against employees for legal and off-duty cannabis use.
CREAMMA has also set out the procedures and requirements that employers must follow when testing employees suspected of being impaired at work. The law includes a unique element: all “scientifically sound” and “objective” tests for the presence of tetrahydrocannabinol (aka THC) must accompany a physical evaluation carried out by a person “with the necessary certification to pronounce on the state of deficiency of the employee, or the lack of.” In accordance with CREAMMA, employers must have a Workplace Impairment Recognition Expert (commonly referred to as WIRE) who will conduct a review of a worker’s impairment Under CREAMMA, the WIRE must be certified. The Legislature directed the CRC to prescribe the standards for a certification program to train and certify persons to serve as WIRE and perform required physical assessments on behalf of employers. Since the date When CREAMMA takes effect, New Jersey employers are awaiting regulations and/or guidelines identifying WIRE certification requirements.
Until the CRC issues such regulations, it has provided interim guidance to clear up some of the vagueness for employers trying to navigate compliance with CREAMMA.
The strong points
The guidelines do not affect an employer’s right to maintain a drug-free workplace. Employers may continue to prohibit employees from working under the influence of recreational marijuana and may prohibit such use of cannabis on company property. However, when it comes to testing an employee for impairment while on duty, the guidelines explicitly state that:
A scientifically sound objective test method that indicates the presence of cannabinoid metabolites in the employee’s body fluids alone is insufficient to support an action unfavorable to employment. However, such a test combined with documentation based on evidence of physical signs or other evidence of impairment during an employee’s prescribed working hours may sufficient to warrant adverse employment action. (emphasis added).
In other words, employers cannot rely solely on the results of a drug test to terminate or discipline an employee suspected of being under the influence at work.
Employers must also designate a member of staff or a third party to assess physical signs, symptoms and/or behavioral indicators of impairment. This person must be “sufficiently trained to determine the impairment and qualified to Reasonable suspicion observation report.” The guidelines recommend that employers establish a standard operating procedure (SOP) for completing the reasonable suspicion observation report. The SOP must identify the manager or supervisor of the employee suspected of being intoxicated, as well as the designated acting staff member to determine if the employee is “reasonably suspected of being intoxicated” during the “employee’s prescribed working hours”, or a second staff member management who can help document observed behavior. At least two people must complete the Reasonable Suspicion Observation Report.
When an employee fails a scientifically reliable screening test for cannabinoid metabolites and the employer creates evidence-based documentation of physical signs or other evidence of impairment as noted above, the guidelines suggest that such a two-pronged approach “may” be sufficient to support an action adverse to the employer. use.
What this means for employers
Guidelines are not the same as a rule and are intended to temporarily fill a void until official rules can be issued. That said, New Jersey employers should, for now, operate on the assumption that regulations will closely follow the guidelines.
Notably, the guidelines do not explain what it means for the interim staff member to be “sufficiently trained” and “qualified” to determine if a worker is under the influence of cannabis during working hours. In the absence of anticipated regulations regarding specific WIRE certification requirements, employers must determine how to obtain personnel sufficiently trained and qualified to perform the assessment authorized by these guidelines.
As such, employers should explore options for training designated personnel to conduct impairment assessments and complete reasonable suspicion observation reports. Employers are advised to create an SOP that addresses the completion of the Reasonable Suspicion Observation Report by at least two supervisors and train their management team upon completion of the report. Employers should also train human resources staff on the SOP and the two-pronged procedure described above, given their involvement in assessing adverse employment action decisions. Employers should also review their hiring practices and drug testing procedures to ensure they comply with CREAMMA and CRC guidelines.