New Jersey Employer Guidance Regarding Employee Cannabis Impairment At Work

The legalization of cannabis has created numerous challenges for New Jersey employers who desire a drugfree workplace…

The legalization of cannabis has created numerous challenges for New Jersey employers who desire a drugfree workplace, particularly when they suspect an employee is under the influence of cannabis at work.  The question most New Jersey employers have been asking – what may I do when I suspect someone is under the influence of cannabis on the job? – has been answered.

What CREAMMA Says About Cannabis Use by Employees

The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) legalized recreational cannabis in New Jersey for adults 21 years and older and established the Cannabis Regulatory Commission (CRC) to oversee New Jersey’s medicinal and adult-use cannabis markets. CREAMMA contains several provisions addressing employment issues, such as drug testing and legal protections for employees who use cannabis outside the workplace.

Under CREAMMA, employers may still prohibit cannabis in the workplace, which includes prohibiting the possession and consumption of cannabis in the workplace, as well as intoxication during work hours. 

Employers can also require random testing, or testing as part of a pre-employment screening, or regular screening of current employees to determine use during an employee’s prescribed work hours. The statute also expressly provides that an employermay also require an employee to undergo drug testing if: 

• The employer reasonably suspects the employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities;
• There are observable signs of intoxication related to usage of a cannabis item; or
• The drug test follows a work-related accident subject to investigation by the employer.

Employers can utilize the results of any such drug test when determining the appropriate employment action concerning the employee. However, an employee drug test must meet a heightened standard, which includes a scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva, and a physical evaluation in order to determine an employee’s state of impairment. CREAMMA provides that the physical evaluation must be performed by a Workplace Impairment Recognition Expert (WIRE) certified by the  CRC. However, the CRC has yet to propose rules for training and certifying WIREs.

CRC Guidance on Workplace Impairment

Though WIRE regulations are not yet in place, the CRC has issued interim Workplace Impairment Guidance (Guidance) to assist employers with handling employees suspected of being under the influence of cannabis at work.   The Guidance emphasizes that a drug test indicating the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action. This is where the drug recognition process that balances the interests of the employee and workplace safety starts.  The Guidance advises that a process that includes scientific testing combined with evidence-based documentation of physical signs and/or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action. The CRC has also created a sample form, known as the “Reasonable Suspicion” Observation Report, that can be used to document the behavior, physical signs, and evidence that support the employer’s determination that an employee is reasonably suspected of being under the influence during an employee’s prescribed work hours.

In the Guidance the CRC also acknowledges that determining if employees are impaired by cannabis in the workplace is challenging because individuals can test positive for an extended period of time after consumption. “Although tests are improving in accuracy there is no perfect test for detecting present cannabis impairment,” the Guidance states. “Therefore, best practice has been for employers to establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test to verify whether or not an individual has used an impairing substance in recent history.”

While CREAMMA provides that WIREs can be certified and assist in the documentation of the physical and behavioral signs of intoxication, the CRC notes that the statute does not impede the ability of employers to continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, like a drug test, to make the determination that an individual violated a drug free workplace policy. Until WIRE standards are in place, employers must devise their own protocols, which should be informed by the Guidance.

The Guidance outlines how employers should document the physical signs or other evidence of impairment that support an adverse employment action against an employee for suspected cannabis use or impairment during work hours. For instance, the CRC advises employers to designate an interim staff member to assist with making determinations of suspected cannabis use during an employee’s prescribed work hours, with such an employee sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report.

The CRC also instructs employers to utilize the uniform “Reasonable Suspicion” Observation Report that documents the behavior, physical signs, and evidence that support the employer’s determination that an employee is reasonably suspected of being under the influence during an employee’s prescribed work hours. Additionally, the employer should establish a Standard Operating Procedure for completing such a report that includes: 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.

The Guidance also provides that employers may also 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.

Finally, the CRC warns that adverse employment actions may impact employees’ protected rights under various laws including, but not limited to, state and federal anti-discrimination laws. The Guidance also provides that “when incorporating this guidance, employers should ensure compliance with all state and federal employment laws.”

Key Takeaway for NJ Employers

As demonstrated by the Guidance, New Jersey’s cannabis regulations remain a work in progress. To protect your business from potential employment-related liability, we strongly encourage you work with experienced counsel when implementing workplace policies and procedures regarding cannabis.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact Dan McKillop, Arianna Mouré or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.

This article is a part of a series pertaining to cannabis legalization in New York, New Jersey and the United States at large. Prior articles in this series are below:

• NY Cannabis Control Board Approves Rules for Advertising and Packaging Cannabis
• New Jersey Awards First Adult-Use Cannabis Retail Licenses
• Will New York Allow Cannabis Businesses to Deduct Expenses?

Disclaimer: Possession, use, distribution, and/or sale of cannabis is a Federal crime and is subject to related Federal policy. Legal advice provided by Scarinci Hollenbeck, LLC is designed to counsel clients regarding the validity, scope, meaning, and application of existing and/or proposed cannabis law. Scarinci Hollenbeck, LLC will not provide assistance in circumventing Federal or state cannabis law or policy, and advice provided by our office should not be construed as such.