By Rachel M. Manne, Esq. and Rachel H. Khedouri, Esq.
On September 9, 2022, the NJ Cannabis Regulatory Commission (“NJ-CRC”) finally issued its guidance on “Workplace Impairment” (the “Guidance”). The full text of the Guidance can be found HERE. The Guidance has been highly anticipated by employers since the February 2021 passage of the Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act (“CREAMMA”), which legalized adult use of recreational cannabis and restricts employers’ ability to test for and take adverse action based upon an employee’s off-duty cannabis use. (Click HERE for our February 24, 2021 eAlert explaining the implications of CREAMMA in more detail.
In essence, CREAMMA enforces an employer’s right to maintain a drug-free workplace, but prohibits mandatory testing of employees for cannabis except:
- upon reasonable suspicion of an employee’s usage of cannabis while engaged in the performance of work responsibilities;
- upon finding any observable signs of impairment related to usage of cannabis;
- following a work-related accident subject to investigation by the employer;
- as part of a random drug test program;
- as part of regular screening of current employees to determine use during work hours; or
- during pre-employment screening.
Under CREAMMA, an employer may not require employees to submit to a test for cannabis unless it includes both “scientifically reliable objective testing methods and procedures” (such as testing of blood, urine, or saliva), and physical evaluation of the employee’s state of impairment. To assist in the physical evaluation component, CREAMMA directs the NJ-CRC, in consultation with the Police Training Commission, to prescribe standards for certification of individuals – known as “Workplace Impairment Recognition Experts” or “WIREs” – who are to be trained in identifying an employee’s usage of or impairment from cannabis.
CREAMMA provides that its employment-related provisions are not operative until the NJ-CRC adopts governing rules and regulations. In August 2021, the NJ-CRC published its Personal Use Cannabis Rules but deferred questions related to WIREs and stated that no physical evaluation of employees was required at that time. In the September 9 Guidance, the NJ-CRC once again defers issuing regulations around the use of WIREs, instead providing that employers may use established protocols for developing reasonable suspicion of impairment without the use of a WIRE until it issues certification standards. Employers may utilize their own documentation of reasonable suspicion along with other evidence (such as a drug test) to determine that an employee violated its drug-free workplace policy.
The Guidance reinforces CREAMMA’s mandate that, with respect to employers’ reliance on test results to take adverse employment action such as discipline or termination, a test showing the presence of cannabinoid metabolites in the employee’s bodily fluid alone is not enough. “Best practice” is for employers to use a drug test to verify recent usage after developing reasonable suspicion by establishing “evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours”, including through:
- a cognitive impairment test,
- a “scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment,” and/or
- an “ocular scan” (undefined in the Guidance).
Next steps for employers
The NJ-CRC suggests that employers implement a Standard Operating Procedure (“SOP”) to designate a trained manager or supervisor staff member (who may be an employee or third party contractor) to document signs of impairment during work hours and further recommends having a second manager or supervisor also observe and document the behavior. The NJ-CRC advises that the SOP provide for the managers/supervisors to use a uniform report to document the “BOAS” (Behavior, Odors, Appearance, and Speech) that supports the determination of impairment and issued a template “Reasonable Suspicion Observed Behavior Report” available HERE. Employers may instead continue to use their own forms if already in place. Regardless of which form is used, the report should be completed within 24 hours of the observed behavior or before the test results are released, whichever is earlier.
The bottom line is that employers should establish a uniform procedure to document the behavior, physical signs, and other evidence leading to a determination that there is reasonable suspicion to believe an employee is under the influence of cannabis during work hours in order to support the company’s right to test the employee as well as defend any adverse employment action it takes based on the results of such test. Notably, the Guidance is silent on procedures for pre-employment testing, though CREAMMA is clear both that such testing is permitted and that a positive result alone is not sufficient to justify not hiring the applicant – which leaves employers wondering what to do with a positive result where they typically will not have information about the applicant’s BOAS at the time the test is performed. Employers required by federal contract or law to follow other protocols relating to drug testing should do so. Note that there is a bill (A890) pending in the New Jersey Assembly that would make the use of WIREs optional as well as bar all pre-employment cannabis testing. We will continue to monitor and report on the passage of such legislation or other NJ-CRC guidance.
If you need assistance drafting or reviewing a drug-free workplace policy, drug testing protocol, a Reasonable Suspicion report, or have any questions on how best to address any workplace cannabis issues, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.