Labor & Employment Law Alert 

On September 9, 2022, the New Jersey Cannabis Regulatory Commission (“NJ-CRC”) issued interim guidance on how to handle workplace impairments issues, as the Commission is still in the process of finalizing the standards of certification of a Workplace Impairment Recognition Expert (“WIRE”). As mentioned in the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA),  WIRE certification will be “issued to full- or part-time employees, or others contracted to perform services on behalf of an employer, based on 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.” Because the certification requirements have not been established yet, as of now, employers are not required to use certified impairment recognition experts  during investigations of workplace accidents or to issue reasonable suspicion-based drug tests. This guidance is only meant to aid employers temporarily with navigating the complexities of cannabis use among their employees as to the WIRE certification requirements while awaiting permanent guidelines.  

Below are the key takeaways from the interim guidance:

  • CREAMMA expressly states that an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabis found in an employee’s body fluid. The act, however, makes clear that employers have the right to maintain a drug-free workplace pursuant to the requirements of the act. Thus, employers may require employees to undergo drug testing upon reasonable suspicion of cannabis use if suspected during the employee’s work hours, or upon finding observable signs of cannabis-related impairment, or as part of a random drug test program, or following a work-related accident subject to investigation by the employer.
  • Documentation of Impairment is Required. A drug test that indicates the presence of cannabis alone is insufficient to support an adverse employment action against an employee. But if a positive drug test is combined with “evidence-based documentation of physical signs or other evidence of impairment” during an employee’s work hours, this may be sufficient to support an adverse employment action.
  • Designation of Decision-maker. Employers may designate an interim staff member or a third-party contractor to assist with making determinations of whether physical signs or other evidence of impairment is sufficient to support an adverse employment action against an employee. The individual designated should be “sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report.” Unfortunately, the interim guidance does not offer employers insight on what training is required, what training is sufficient or where to obtain training.
  • Reasonable Suspicion Observation Report. This report documents behavioral and physical signs, along with other evidence that supports an employer’s determination that an employee is reasonably suspected of being impaired during the employee’s work hours. The Commission released an example of an observation report, which employers may, but are not required to use.   Employers should establish a procedure for completing the observation report which should include: “the employee’s manager or supervisor or an employee at the manager or supervisor level; and 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.” However, if employers are already utilizing a similar observation report they may continue to do so.  
  • Cognitive Impairment Testing. Alternatively, an employer 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 evidence to establish reasonable suspicion of cannabis use or impairment during work hours.
  • Federal Contractors. For employers who are subject to federal contracts which contain specific reasonable suspicion or drug testing procedures, they may continue to follow such protocols without violating CREAMMA.

Pending Legislation

It is important to note that there is a bill pending in the New Jersey Legislature, A890, introduced in January 2022, which would make the use of a WIRE optional. Additionally, under this bill an employer would be permitted take an adverse employment action against an employee if the employee received a positive drug test and if the employer is prepared to testify about what led to their suspicion of impairment. Employers should also be aware that this bill, if passed, would prohibit pre-employment drug testing for marijuana, except for some jobs such as railroad workers or law enforcement officers.  We will continue to track this bill and provide any necessary updates.

Bottom Line

Employers are left trying to make sense of how to comply with CREAMMA and this “optional” interim guidance.  We recommend employers should review their existing policies regarding drug testing and at a minimum consider removing marijuana from pre-employment drug tests.  Since certified WIREs are not yet required, employers should consider implementing a dual-evaluation approach whenever it is considering “reasonable suspicion” testing for any substance.  The newly released observation report is a good way to implement this new procedure.  Employers should also consider training for managers and human resource personnel on evaluating “reasonable suspicion.”

The author thanks law clerk Naomi Gulama for her assistance in drafting this client alert.


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