The New Jersey Cannabis Regulatory Commission recently issued interim guidance on the workplace drug testing provisions of the state’s recreational cannabis law meant to act as a placeholder until regulations on the standards for Workplace Impairment Recognition Expert certification are published.
The guidance allows employers to continue to use existing policies/processes for drug testing, reaffirms that the use of a Workplace Impairment Recognition Expert (WIRE) is not yet required, and offers suggestions on how to create evidence-based documentation of physical signs or other evidence of impairment during work hours, including a sample Reasonable Suspicion Observation Report.
The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA), which went into law in February 2021, requires that drug tests include “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and a “physical evaluation,” which must be conducted by a “Workplace Impairment Recognition Expert.” The law requires the New Jersey Cannabis Regulatory Commission (NJCRC) to issue regulations establishing certification standards for WIREs, but none have been issued to date.
On September 21, 2021, the NJCRC issued initial regulations to implement NJCREAMMA, but those regulations largely left the employment-related provisions of the law unaddressed. Those regulations did, however, provide that a “physical evaluation” of an employee was not required for a workplace drug test until the NJCRC develops standards for WIRE certification.
Nearly a year later, on September 9, 2022, the NJCRC issued its “Guidance on ‘Workplace Impairment’” (Guidance). The Guidance advises that—at least for now—employers need not use a WIRE to conduct a physical evaluation to determine suspected cannabis use or impairment during work hours (because, of course, the WIRE certification standards have yet to be published).
The key takeaways from the Guidance include the following.
- Employers are still prohibited from taking adverse action solely because an employee has cannabis metabolites in their system: The Guidance confirms that NJCREAMMA still prohibits employers from taking adverse action against an employee solely because they lawfully use recreational cannabis or solely due to the presence of cannabinoid metabolites in their system. However, an adverse action may be permissible where there is a scientifically reliable drug test that detects the presence of cannabinoid metabolites and there exists “evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed works hours,” which can be documented on a Reasonable Suspicion Observation Report (discussed below). 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, as physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work.”
- Interim status of the Guidance: The Guidance is “intended to serve as guidance until the NJ-CRC formulates and approves standards for WIRE certifications.”
- Designated “interim staff member” or contractor to assist with determinations of suspected cannabis use: An employer may allow a third-party contractor or an employee who is “sufficiently trained” to “determine impairment” to document the signs and behaviors of suspected workplace impairment. That documentation can be accomplished using the Reasonable Suspicion Observation Report described below. The Guidance does not address what “sufficiently trained” means.
- Utilize a Uniform Reasonable Suspicion Report: The NJCRC provided a sample Reasonable Suspicion Observed Behavior Report form (referred to as a “Reasonable Suspicion Observation Report”), which is not specific to cannabis. Employers are permitted to use their own form if they wish to do so. The Guidance and the Reasonable Suspicion Observation Report indicate that two observers of the suspicious activity may complete separate forms to justify an adverse action based on suspected on-the-job impairment. Those “observers,” according to the Guidance, should be (1) “the employee’s manager or supervisor or an employee at the manager or supervisor level”; and (2) “an interim staff member that has been designated to assist with determining whether an employee is reasonably suspected of being impaired during an employee’s prescribed work hours, or a second manager or supervisor.”
- Standard Operating Procedure: Employers should maintain a “Standard Operating Procedure” which identifies a process for completing the Reasonable Suspicion Observation Report described above.
- Employers subject to federal contracts: NJCREAMMA contains a general carve-out for employers who are “subject to the requirements of a federal contract” and for whom there would be a “provable adverse impact” if they had to adhere to the drug testing provisions of the law. The Guidance does not expand the scope of the carve-out, but it clarifies that employers who are subject to federal contracts that require specific reasonable suspicion or drug testing protocols may continue to follow those protocols without violating NJCREAMMA.
RECOMMENDATIONS FOR EMPLOYERS
New Jersey employers should consider taking the following steps:
- Prepare a (or use the sample) Reasonable Suspicion Observation Report and accompanying Standard Operating Procedure consistent with the Guidance.
- Identify and train employees who can determine suspected cannabis use during work hours or use a third-party contractor.
- Update employee policies to ensure consistency with the Guidance, and train managers and human resources employees on the Guidance.