Loyola University Chicago School of Law, J.D. 2024
The New Jersey Cannabis Regulatory Commission (the Commission) recently issued interim guidance on the workplace drug testing provisions of the state’s recreational cannabis law. The guidance is meant to act as a placeholder until the standards for Workplace Impairment Recognition Expert (WIRE) certification are published, which outlines how employers should respond when employees are suspected of marijuana impairment. The interim guidance confirms that an employee’s off-duty use of cannabis cannot be the reason for any adverse employment action, but employers are allowed to terminate workers who are under the influence during work hours.
Why is this an interim guidance?
In September of 2021, the Commission issued initial regulations to implement the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA), but failed to address the employment-related provisions of the law. However, the regulations did mention that a “physical evaluation” of an employee was not required for a workplace drug test until the Commission fully develops the WIRE certification. On September 9, 2022, the Commission issued this interim guidance advising that employers need not use a WIRE to conduct a physical evaluation to confirm suspected cannabis use or impairment during work hours. This might be due to the fact that the WIRE certification standards are yet to be published, so employers should monitor the status of the standards and use caution in taking any action against employees who test positive for cannabis. This interim guidance will remain in place until final regulations have been confirmed, and employers are still free to maintain a “drug-free workplace.”
Although the current law authorizes state residents over the age of 21 to recreationally use marijuana, it also prohibits employers from taking adverse employment action solely upon the results of a drug test for marijuana. Employers must also provide evidence that the employee was impaired on the job. The interim guidance allows employers to continue to use existing policies and processes for drug testing and offers ways to create evidence-based documentation of actual signs or evidence of impairment on the job. Ultimately, a WIRE’s assessment, combined with a positive drug test, would enable an employer to take an adverse action against their employee.
The Commission includes an example of a “Reasonable Suspicion Observation Report” (Report), however employers are permitted to use their own forms as well. The Report allows two observers of suspicious activity to complete separate forms to justify the adverse action based on alleged workplace impairment. The Report recommends that the observers should be managers, supervisors, or third party staff members that have been designated to assist when determining whether an employee is reasonably suspected of being impaired on the job.
What about federal contractors?
The interim guidance clarifies what NJCREAMMA already provided for employers who are “subject to the requirements of a federal contract.” The guidance clarifies that the employers who are subject to federal contracts that require specific reasonable suspicion or drug testing protocols are allowed to continue following those protocols without violating the NJCREAMMA. Thus, if complying with NJCREAMMA jeopardizes an employer’s federal contract or puts the employer out of compliance with federal regulations, the employer is exempt.
The interim guidance will apply until final regulations are released by the Commission. While the Commission works on implementing regulations for WIRE certification, employers should review and update their policies on making reasonable suspicion determinations. Even with this interim guidance, employers seeking to terminate employees for cannabis-use should still exercise caution given the uncertainty of when WIRE will be finalized. This could mean considering the modification of their drug testing policies, providing training and documentation to managers tasked with making reasonable suspicion determinations, and picking the drug test most appropriate to use for workplace impairment determination.
The interim guidance recommends that employers maintain a “Standard Operating Procedure” which identifies a process for completing some form of a Reasonable Suspicion Observation Report. Firms like Morgan Lewis and Littler Mendelson have suggested that it would be safe to update employee policies and exercise heightened awareness in making reasonable suspicion determinations. It is advised that employers reach out to legal counsel for guidance in this evolving area of law. Employers can also consider identifying or training employees who can determine suspected cannabis use during work hours or consider hiring a third-party contractor.