On September 9, 2022, the New Jersey Cannabis Regulatory Commission (CRC) issued interim guidance for employers on drug testing employees for cannabis. Since the legalization of recreational marijuana for adults 21 years of age or older, New Jersey employers are expected to follow certain procedures associated with drug testing employees based on reasonable suspicion of impairment. Employers have long awaited the enactment of regulations addressing how they can meet their compliance obligations. Until such regulations are promulgated, the CRC’s guidance provides employers with 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-use cannabis industry and imposed certain obligations and restrictions on New Jersey employers with respect to drug testing. Among other things, CREAMMA precludes employers from taking adverse employment actions against employees and/or job applicants solely due to a positive drug test for cannabinoid metabolites and prohibits discrimination against employees for lawful, off-duty use of cannabis.
CREAMMA also set forth the procedures and requirements employers must follow when testing employees suspected of impairment while on the job. The law includes a unique element: all “scientifically reliable” and “objective” tests for the presence of tetrahydrocannabinol (aka THC) must accompany a physical evaluation conducted by a person “with the necessary certification to opine on the employee’s state of impairment, or lack thereof.” Pursuant to CREAMMA, employers shall have a Workplace Impairment Recognition Expert (commonly referred to as a WIRE) who will conduct the examination of a worker’s impairment. Under CREAMMA, the WIRE must be certified. The Legislature tasked the CRC with prescribing the standards for a certification program to train and certify individuals to serve as WIREs and conduct the required physical evaluations on behalf of employers. Since the effective date of CREAMMA, New Jersey employers have been awaiting regulations and/or guidance that identifies the WIRE certification requirements.
Until the CRC issues such regulations, it has provided interim guidance to clear some of the haze for employers trying to navigate compliance with CREAMMA.
The guidance does not change an employer’s right to maintain a drug-free workplace. Employers can continue to prohibit employees from working under the influence of recreational marijuana and can ban such use of cannabis on company property. However, when it comes to testing an employee for impairment while on duty, the guidance explicitly states that:
A scientifically reliable objective testing method that indicates the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action. However, such a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action. (emphasis added).
In other words, employers cannot rely on the results of a drug test alone to terminate or discipline an employee suspected of being under the influence while at work.
Employers must also designate a staff member or third party to assess physical signs, symptoms and/or behavioral indicators of impairment. This person must be “sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report.” The guidance recommends that employers establish a Standard Operating Procedure (SOP) for completion of the Reasonable Suspicion Observation Report. The SOP should identify the manager or supervisor of the employee suspected of impairment, as well as the interim staff member designated to determine whether the employee is “reasonably suspected of being impaired” during the “employee’s prescribed work hours,” or a second member of management who can aid in documenting the behavior observed. At least two individuals should complete the Reasonable Suspicion Observation Report.
When an employee fails a scientifically reliable drug test for cannabinoid metabolites and the employer creates evidence-based documentation of physical signs or other evidence of impairment as outlined above, the guidance suggests that such a double-barreled approach “may” be sufficient to support an adverse employment action.
What This Means for Employers
The guidance is not the same as a regulation and is meant to temporarily fill a void until official regulations can be issued. That said, employers in New Jersey should, for now, operate under the assumption that the regulations will closely track the guidance.
Notably, the guidance does not explain what it means for the interim staff member to be “sufficiently trained” and “qualified” to determine whether a worker is under the influence of cannabis during work hours. In the absence of the anticipated regulations addressing the specific WIRE certification requirements, employers are left to determine how to get personnel sufficiently trained and qualified to perform the assessment permitted by this guidance.
As such, employers should explore options for training designated staff to conduct impairment assessments and complete the Reasonable Suspicion Observation Reports. Employers are advised to create an SOP that addresses completion of the Reasonable Suspicion Observation Report by at least two supervisors and train their management team on completion of the report. Employers must also train human resources personnel on the SOP and the dual-pronged procedure described above, given their involvement in assessing decisions concerning adverse employment action. Employers should also examine their hiring practices and drug testing procedures to ensure they are compliant with CREAMMA and the CRC’s guidance.
For More Information
If you have any questions about this Alert, please contact Kathleen O’Malley, Danielle M. Dwyer, any of the attorneys in our Employment, Labor, Benefits and Immigration, any of the attorneys in our Cannabis Industry Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm’s full disclaimer.