Cannabis Testing in the New Jersey Workplace Just Got a Little Less Hazy

On September 9, 2022, the New Jersey Cannabis Regulatory Commission (“CRC”) issued interim guidance (the “Guidance”) for employers regarding the employment protections passed for cannabis users last year pursuant to the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”).  The Guidance shall remain in effect until the CRC publishes the standards for Workplace Impairment Recognition Expert (“WIRE”) certification.

As noted in more detail below, the Guidance discusses an employer’s right to maintain a substance-free workplace and offers practical guidance for employers struggling with how to ascertain whether an employee is impaired during working hours.

What protections are available to cannabis users in the workplace?

As we previously reported, NJCREAMMA provides various employment protections for employees who use cannabis recreationally and imposes strenuous requirements on New Jersey employers who conduct drug testing for the presence of cannabis in an individual’s system.  Namely, under NJCREAMMA:

• New Jersey employers are prohibited from refusing to hire or take any adverse employment action against employees based solely on their use (or nonuse) of recreational cannabis. Therefore, an employer may not terminate an employee solely because he or she fails a drug test due to cannabis use.
• Any cannabis testing conducted by employers must be based upon “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and the test must also include a “physical evaluation in order to determine an employee’s state of impairment.”
• The individual conducting the aforementioned “physical evaluation” must be certified as a WIRE in accordance with standards to be established by the CRC, which will include receiving education and training “in detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance, and for assisting in the investigation of workplace accidents.”

Notably, the “physical evaluation” requirement has been temporarily suspended by the CRC since August 2021 until the CRC develops WIRE certification standards.  As noted above, the Guidance provides that it “is intended to serve as guidance until the NJ-CRC formulates and approves standards for WIRE certifications.”

What does the Guidance say?

The Guidance contains the following key takeaways:

• The Guidance reaffirms that NJCREAMMA prohibits employers from taking any adverse employment actions against employees based solely on their use of cannabis or having cannabis metabolites in their system.
• The Guidance emphasizes that NJCREAMMA does not interfere with an employer’s right to maintain and enforce a substance-free workplace and require employees to undergo drug testing in the following circumstances: (1) an employer having reasonable suspicion of an employee’s usage of cannabis or cannabis products while performing their job duties; (2) an employer finding any observable signs of impairment related to cannabis or cannabis product use; (3) as part of a random drug testing program; or (4) following a work-related accident subject to investigation by the employer.
• Employers are permitted to take an adverse action against an employee who, in connection with a drug test that meets the law’s requirements, tests positive for cannabis use and when there is “evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours[.]” Significantly, the Guidance does not explicitly require that an employer conduct a drug test for cannabis use to take an adverse employment action against an employee.  Instead, the Guidance states that having documented reasonable suspicion of impairment “paired with other evidence, like a drug test” may be used to determine that an individual violated a substance-free workplace policy.
• To determine physical signs or other evidence of impairment sufficient to support an adverse employment action against an employee for potential cannabis use or impairment during working hours, the Guidance offers the following suggestions to employers:

1. 1. Designate an interim staff member or third-party contractor to make determinations regarding suspected cannabis use. The Guidance states that this individual should be trained and qualified to determine impairment and complete a Reasonable Suspicion Observation Report (more on that below).
   2. Use the sample Reasonable Suspicion Observation Report from the CRC, or a similar form created by the employer, to document the “behavior, physical signs, and evidence” to support the determination that there is reasonable suspicion that an employee is under the influence of cannabis during working hours.  Notably, the sample Reasonable Suspicion Observation Report is not specific to cannabis and contains numerous detailed recommended practices and procedures to follow, including a list of relevant physical symptoms to assess.
   3. Maintain a “Standard Operating Procedure” which identifies a process for completing a Reasonable Suspicion Observation Report.

• 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.”
• The Guidance reaffirms that NJCREAMMA contains a carveout 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 comply with the law.

What should employers do now?

All New Jersey employers should carefully review the Guidance and update their current drug testing and substance-free workplace policies and procedures with counsel to ensure compliance with the Guidance.  Employers should also either implement the CRC’s sample Reasonable Suspicion Observation Report or create their own for use in connection with enforcing substance-free workplace policies.  Finally, employers should identify and train employees who can determine suspected cannabis impairment during work hours or use a third-party contractor.