The New Jersey Cannabis Regulatory Commission Issues Much-Needed Interim Guidance on Managing Employees Working While Under the Influence of Cannabis Products

The enactment of the New Jersey Cannabis Regulatory Enforcement, Assistance, and Marketplace Modernization Act (CREAMMA), signed into law in February 2021, legalized the recreational use of marijuana for adults ages 21 and older in New Jersey. However, the right to marijuana use is not unfettered, and an employer’s right to maintain a drug-free workplace is often easier said than done where cannabis is concerned.

Under CREAMMA, an employer cannot discharge or take any other adverse action against an employee because the employee uses cannabis items outside of the workplace. An employer may, however, require an employee to undergo a drug test:

• Upon reasonable suspicion of an employee’s use of a cannabis item while performing his or her work responsibilities, or
• Upon finding any observable signs of intoxication related to use of a cannabis item, or
• Following a work-related accident subject to investigation by an employer

In this regard, CREAMMA directs the Cannabis Regulatory Commission (CRC), the entity tasked with crafting and enforcing rules and regulations governing the sale and use of cannabis in New Jersey, to prescribe regulations for issuing a Workplace Impairment Recognition Expert (WIRE) certification to full- or part-time employees or others contracted to provide services on behalf of an employer. Through education and training, a WIRE becomes certified in detecting and identifying an employee’s use of or impairment from a cannabis item or other intoxicating substance. CREAMMA also provides for a physical evaluation of an employee by an individual with the necessary certification.

The CRC, which has yet to promulgate regulations for the WIRE certification, however, recently issued a temporary Guidance on “Workplace Impairment” to assist employers grappling with striking a balance between their right to a drug-free and safe workplace and their employees’ right not to be discriminated against for cannabis use outside of work. Below is a summary of the Guidance, which the CRC has stated should be consulted by employers until the agency implements its final WIRE certification regulations.

To start, the Guidance notes that cannabis remains in an individual’s bloodstream well after it is initially ingested, and there is, at present, no reliable test for detecting current use. Accordingly, as a “best practice,” employers have been establishing “evidence-based protocols” for documenting signs of impairment in employees to determine “reasonable suspicion” and then using a drug test to determine whether an employee has recently used a cannabis product.

The Guidance also recognizes that while CREAMMA provides that a WIRE expert may be certified and assist an employer with detecting “physical and behavioral” signs of impairment in an employee, CREAMMA does not prevent an employer from continuing the use of established protocols to develop reasonable suspicion and then use that documentation, along with other evidence, such as a drug test, to determine that an individual violated the employer’s drug-free workplace policy.

Importantly, the Guidance makes clear that an employer violates CREAMMA if it takes any adverse action against an employee solely based on drug test results, which show the presence of a cannabis product. There is, however, no violation if an employer requires an employee to undergo a drug test upon “reasonable suspicion” of cannabis use while performing their work duties, or upon observable signs of impairment based on cannabis use, or following an investigation into a work-related accident. Accordingly, evidence-based documentation that shows an employee’s “physical” or other signs of impairment during work hours, taken together with a positive drug test showing use of a cannabis product, may be sufficient to justify an adverse employment action.

To aid in this analysis, employers may, but are not required to, utilize the “Reasonable Suspicion Observed Behavior Report” form, which the CRC has attached to the Guidance.

Regardless of whether an employer uses this form or their own form, the Guidance encourages employers to implement a standard operating procedure when it suspects that an employee is impaired. It also recommends that employers retain or designate an interim staff member or third-party contractor trained in identifying signs of impairment to assist in the process.

Finally, it is hoped that when issued, the CRC regulations for WIRE certification will provide much-needed clarity as to “reasonable suspicion.” In the interim, employers should follow the recent Guidance.

If you have questions about this blog, please contact an attorney in the Gibbons Employment & Labor Law Group.