The New Jersey Cannabis Regulatory Commission ("the Commission") on September 9, 2022 issued long-awaited guidance for employers on how to respond when employees are suspected of marijuana impairment. This is the Commission's first workplace guidance since the adoption of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act ("the Act"), which Governor Murphy signed on February 22, 2021. The Act legalized the use of recreational marijuana for adults over the age of 21 as a matter of state law, but created many obstacles and uncertainties for employers seeking to maintain a drug-free workplace.

The guidance does not provide the sort of detail many employers were hoping for. The Commission failed to create a regulatory scheme for designating workplace impairment recognition experts, but does provide reassurance that reasonable-suspicion testing may continue so that employers may make decisions about worker marijuana impairment, as directed in the legalization statute.

The current law authorizes state residents over the age of 21 to engage in the recreational use of marijuana and prohibits employers from taking adverse employment action solely based on an employee's use of marijuana while off duty. At the same time, employers are permitted to enforce workplace policies that prohibit employees from being under the influence of marijuana or impaired by marijuana or marijuana products at work. In essence, the law prohibits employers from making employment decisions solely upon the results of a drug test for marijuana; they must also be able to point to evidence that the individual was impaired at work.

To address this issue, the Act created the role of Workplace Impairment Recognition Expert (WIRE). The WIRE, an individual designated by the employer, would be certified to assess whether an employee is under the influence in the workplace or during work hours. A WIRE's assessment, combined with a positive drug test, would enable an employer to take an adverse action against the employee.

Although the Act went into effect nearly 18 months ago, the Commission has not adopted any regulations setting forth how to become a WIRE, what a WIRE may do, or the physical signs a WIRE must look for to evaluate the employee, etc. This lack of information has created confusion and frustration for employers. While the Commission still has not formulated the standards on how to become a certified WIRE, it has now issued guidance delineating interim procedures employers may utilize in detecting and identifying an employee's workplace use of, or impairment arising from, suspected use of marijuana or marijuana products.

The guidance suggests that the recommended course of action for employers is to establish evidence-based protocols and to document observed behavior and physical signs of impairment that give rise to reasonable suspicion or impairment, and then to utilize a drug test to verify whether an individual has used an impairing substance in recent history. The Commission suggests that the employer designate a staff member to assist in making determinations regarding suspected drug use. The guidance indicates that the individual making reasonable suspicion determinations may use, among other things, cognitive impairment tests - a scientifically valid, objective, consistently repeatable, standardized automated test designed to measure an employee's impairment - or an ocular scan, as possible physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work. (The guidance does not address whether impairment tests of the type described are available or discuss the impact of the Americans with Disabilities Act or the New Jersey Law Against Discrimination on the use of tests that may qualify as medical examinations.)

The Commission recommends that the staff member making a reasonable suspicion determination utilize a "Reasonable Suspicion Observation Report" (a sample of which has been provided by the Commission and can be found here, to document the physical signs and evidence of suspected drug use, as well as the testing procedures used. The form lists several physical signs or symptoms and behavioral indicators that can be evaluated to assist in the determination. The guidance also suggests that a second individual, such as the employee’s manager or supervisor, be involved in the testing procedures. If a second individual is used, that person also must complete a separate Reasonable Suspicion Observation Report.

While the Commission works on promulgating regulations for WIRE certification, employers should review and update their policies and exercise caution in making reasonable suspicion determinations. Employers are advised to reach out to legal counsel for guidance in navigating this evolving area of law.

Posted: September 19, 2022