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September 19, 2022

New Jersey Cannabis Regulatory Commission Issues Long-Awaited Guidance on Establishing Workplace Impairment

In February 2021, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”) legalized the use of recreational marijuana for adults over the age of 21. As a result, while NJCREAMMA still allows employers to prohibit employees from using, being impaired by, or possessing cannabis in the workplace, employers can no longer take adverse action against an employee solely because an individual has used, or not used, cannabis off duty. Given that cannabinoid metabolites can result in a positive drug test even if the employee is not currently under the influence of cannabis, NJCREAMMA modified the term “drug test” to include both (1) a scientifically reliable objective testing method and (2) a physical evaluation conducted by an individual certified as a Workplace Impairment Recognition Expert. However, with no WIRE certification standards yet in place, employers have had no clear guidance on what objective signs and symptoms to look for in a physical evaluation to support an adverse employment action against an employee for working while impaired – until now.

On September 9, 2022, the New Jersey Cannabis Regulatory Commission (the “Commission”) issued long-awaited guidance on “Workplace Impairment” (the “Guidance”) for employers to utilize while the Commission continues to formulate and approve standards for WIRE certifications. The Guidance provides that employers may designate an interim staff member to assist with making determinations of suspected cannabis use or impairment during work hours. This employee should be sufficiently trained to determine impairment and qualified to complete a Reasonable Suspicion Observation Report, which documents the behavior, physical signs, and evidence that support the employer’s determination that an employee is reasonably suspected of being under the influence of cannabis at work. Alternatively, employers may utilize a third-party contractor.  The Guidance further provides a State Reasonable Suspicion Observation Report, located here, as an example form that can be used by employers to document findings from the physical evaluation. The Guidance also advises employers to establish a standard operating procedure for completing such a report for suspicion of any substance use or abuse, not just cannabis use.

In conducting the physical examination associated with the Reasonable Suspicion Observation Report, the Guidance advises that employers may use a cognitive impairment test, a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment, and/or an ocular scan, to demonstrate physical signs or evidence of substance use or impairment.

Importantly, the Guidance reaffirms that, if it is determined that any of the provisions of NJCREAMMA result in a provable adverse impact on an employer subject to the requirements of a federal contract or federal law, the employer may comply with the specific protocols and obligations set forth in the federal contract or established by federal law.

In light of the Guidance, employers may wish to contact counsel to implement strategies consistent with the Guidance for preparing procedures to complete Reasonable Suspicion Observation Reports. In determining who should conduct the physical evaluation, employers should keep in mind that the person must act without bias and be capable of making fair assessments and observations when completing the Reasonable Suspicion Observation Report to avoid allegations of discriminatory practices.

Employers should also review their drug test policies to ensure compliance with NJCREAMMA and the Guidance. For example, employers will want to revisit pre-employment drug testing to ensure they are not barring applicants for using cannabis without the necessary signs of impairment on the job, including removing cannabis from a pre-employment drug screen altogether.  Until the Commission issues its WIRE certification standards, employers should follow the Guidance closely to ensure they are complying with the law and only taking adverse employment actions against those reasonably believed to be currently impaired or under the influence of cannabis at work.