In September 9, 2022, the New Jersey Cannabis Regulatory Commission (NJ-CRC) issued long-awaited interim guidance to employers regarding 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 also released a template “Reasonable Suspicion Observed Behavior Report” form that employers may, but are not required to, use in connection with workplace drug testing.

As we previously reported, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) requires an employer, prior to conducting most marijuana drug testing, to conduct a “physical evaluation” of an employee and to use a so-called WIRE-certified individual to make a decision about whether the employee is impaired by marijuana when conducting such testing. CREAMMA requires the NJ-CRC to prescribe “standards in regulation for a [WIRE] certification, to be issued to full- or part-time employees, or others contracted to perform services on behalf of an employer, based on education and training in detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance, and for assisting in the investigation of workplace accidents.”

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.”

Proving Impairment or Intoxication

The interim guidance provides that in order for an employer 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 the employee’s prescribed work hours, the employer may—but is not required to—follow a number of steps.

1. Designation of an Individual to Make Impairment Decisions

First, the interim guidance suggests that an employer may designate an “interim staff member” or “third-party contractor” to “assist with making determinations of suspected cannabis use.” Further, while the interim guidance provides that such individual should be “sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report,” it 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.

2. Use of Reasonable Suspicion Observation Report Forms

Second, the interim guidance refers to the NJ-CRC’s template report form that an employer may—but is not required to—use 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 the employee’s prescribed work hours. The NJ-CRC’s template report form includes a number of very detailed recommended best practices and procedures for employers to follow. Notably, the interim guidance provides that if the employer already utilizes a reasonable suspicion observation report form to determine when drug testing is necessary, it may continue to do so, but the NJ-CRC’s best practices and procedures still need to be followed. Because employers are not required to use the NJ-CRC’s template report form, those that voluntarily choose to do so  may want to note several important requirements contained therein.

3. Use of Cognitive Impairment Tests

Next, the interim guidance 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.”

4. Evidence-Based Documentation/Physical Signs of Impairment

Finally, the interim guidance cautions that a drug test showing “the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action.” (Emphasis added.) Instead, to take an adverse employment action against an employee for a failed drug test for marijuana, the employer must also produce “evidence-based documentation of physical signs or other evidence of impairment during [the] employee’s prescribed work hours.”

Potential Next Steps

In light of the NJ-CRC’s interim guidance, there are several things employers may want to consider doing now to comply with the requirements and best practices contained therein.

• Reviewing and revising policies. Employers may want to review both their drug testing and drug-free workplace policies and procedures to ensure compliance with CREAMMA and the NJ-CRC’s interim guidance regarding WIREs.

• Adopting/implementing a reasonable suspicion observation report. Regardless of whether an employer chooses to use the NJ-CRC’s template report form, it may want to consider implementing the use of such reports in connection with the administration of drug testing policies so as to comply with the interim guidance’s requirement that adverse employment actions be grounded in part on “evidence-based documentation.”

• Training managers and human resources personnel. Employers may want to provide training to managers and human resources professionals with regard to the requirements and restrictions of CREAMMA, as discussed above. Employers may also consider educating managers and supervisors about the signs and behaviors associated with being under the influence of marijuana.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments related to marijuana laws in the workplace and will provide updates on the Drug Testing blog as additional information becomes available.