High Maintenance: The NJ Cannabis Regulatory Commission Rolls Out Long-Awaited Guidance On Drug Testing, Discipline, & Cannabis In The Workplace

Employers, note that the Guidance from the New Jersey Cannabis Regulatory Commission (the Commission) is only a temporary gap-fill. The Commission has yet to issue standards on the required certification process for those workplace experts who will be designated to detect an employee’s on-the-job impairment from cannabis (among other substances). Here’s what New Jersey employers need to know now.

Background

The New Jersey Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA) prohibits New Jersey employers from discriminating against employees who lawfully use cannabis outside of work and who do not report to work impaired by the substance. Because cannabis metabolites linger in an individual’s system, and in some cases long after use, it is sometimes impossible for an employer to determine based solely on a drug test if an employee is impaired while on the job. The Commission seeks to address the tension between CREAMMA’s anti-discrimination provision and an employer’s right to a drug-free workplace by mandating the certification of Workplace Impairment Recognition Experts (also referred to as WIREs). WIREs are employees or third parties who are trained to detect an employee’s on-the job impairment from cannabis or another substance. The WIRE’s determination of on-the-job substance impairment can form the basis of requiring an employee to undergo a drug test based upon reasonable suspicion of on-the-job impairment. The Commission has not yet rolled out its standards for WIRE certification. In the absence of these WIRE standards, the Commission now offers employers interim Guidance on handling suspected on-the-job impairment and resulting discipline.

The Guidance

Under the Guidance, if an employee or vendor trained on impairment plus the suspected employee’s manager/supervisor document behaviors or physical signs of impairment, then that documentation will give rise to a reasonable suspicion to drug test the employee. If the employee then fails the test, the employer may proceed to disciplinary action, including termination. The key take-away from the Guidance is 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.”

The Commission also provides a template to record the documentation of behavior and/or physical signs of impairment, which is referred to as a Reasonable Suspicion Observation Report (RSOR). It is noteworthy that the RSOR is not specific or limited to impairment from cannabis.

Two additional important take-aways from the Guidance: First, the Guidance also clarifies that employers may also require a drug test as part of a random drug test program or after a work accident which the employer is investigating. Second, New Jersey employers are not required to violate federal contracts in order to comply with this Guidance.

Bottom Line

In light of the Guidance, action steps for employers are to:

• Identify and train an employee to help make the determination of whether an employee is under the influence of cannabis while on the job (or retain a third party to do so).
• Train this employee on the RSOR to document behaviors and physical signs of impairment.
• Establish a Standard Operating Procedure (SOP) for completing the RSOR. This SOP should include identifying the title of the person completing the RSOR. A second RSOR should also be completed by the supervisor/manager of the employee suspected of impairment.
• Update drug and alcohol policies to incorporate the Guidance.

For more information regarding the Guidance and for implementing compliant workplace Drug & Alcohol Policies in your workplace, please contact Partner Dina M. Mastellone, Esq. via email here, or Counsel Brigette N. Eagan, Esq. via email here in Genova Burns’ Human Resources Counseling & Compliance Practice or call 973.533.0777.