On September 9, 2022, the New Jersey Cannabis Regulatory Commission (NJ-CRC) issued long-awaited interim guidance on workplace drug testing. Specifically, the guidance addresses the use of a Workplace Impairment Recognition Expert (WIRE) to “detect and identify an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance.” In addition, the NJ-CRC released a template “Reasonable Suspicion Observed Behavior Report” form that employers may, but are not required to, use in connection with workplace drug testing. The guidance can be found here.

As New Jersey employers are well aware, in February 2021, New Jersey Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). Among other things, CREAMMA legalized and regulated marijuana use for those 21 and older and decriminalized possession of limited amounts of marijuana. Since that time, employers have been waiting for more information from the state about the WIRE program and clarification regarding how to implement drug policies and drug testing programs in light of CREAMMA. The NJ-CRC’s newly released interim guidance states that it “is intended to serve as guidance until the NJ-CRC formulates and approves standards for WIRE certifications.” Employers with drug testing requirements under federal law should keep in mind that those requirements preempt any state law requirements.

The interim guidance emphasizes that New Jersey employers have the “right to maintain a drug free workplace” and that “employers may require an employee to undergo a drug test upon reasonable suspicion of an employee’s usage of cannabis or cannabis products while engaged in the performance of the employee’s work responsibilities, or upon finding any observable signs of impairment related to usage of cannabis or cannabis products, or as part of a random drug test program, or following a work-related accident subject to investigation by the employer.” The interim guidance provides that, while 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, 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.

To demonstrate physical signs or other evidence of impairment sufficient to support an adverse employment action against an employee for suspected cannabis use or impairment during an employee’s prescribed work hours employers may, but are not required to:

• Designate an interim staff member to assist with making determinations of suspected cannabis use during an employee’s prescribed work hours. While the guidance states that this employee should be sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report, the guidance provides no information as to how the individual can obtain such “training” or what kind of training the NJ-CRC would deem sufficient for the individual to serve in this role; and
• Utilize a 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. The interim guidance further provides that “[a]n 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 physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work.”
  In light of this interim guidance, New Jersey employers should consider taking the following steps:

Review and revise workplace drug testing and drug-free workplace policies and procedures to ensure compliance with CREAMMA and the NJ-CRC’s interim guidance;
Train all managers and human resources personnel regarding reasonable suspicion in the workplace; and
If not already doing so, begin using a reasonable suspicion observation report, either in the form recommended by the NJ-CRC’s template or in a form that is substantially similar to the NJ-CRC template.
Employers should consult with experienced human resources professionals and/or labor and employment counsel. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney is available for additional consultation.

Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers’ Association
800-662-6238

*This Alert is provided for general informational purposes only and does not constitute legal advice.