The New Jersey Cannabis Regulatory Commission published guidance on September 9, 2022, for employers to address marijuana impairment in the workplace.  The guidance does not, however, provide the long-awaited certification standards for Workplace Impairment Recognition Experts.

In February 2021, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), legalized adult use recreational marijuana.  The law allows employers to conduct drug testing for marijuana as long as the drug test includes scientifically reliable testing of blood, urine, or saliva, and a physical evaluation in order to determine an employee’s state of impairment. The physical evaluation must be conducted by an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof, related to the use of cannabis. The Commission, in consultation with the Police Training Commission, is to prescribe standards for a Workplace Impairment Recognition Expert (WIRE), who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances and for assisting in the investigation of workplace accidents. WIRES will be certified by the Commission.

The September 9^th Guidance states that the New Jersey Cannabis Regulatory Commission still is formulating standards for WIRES.  In the meantime, the Commission stated that CREAMMA “does not impede the ability of employers to continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, like a drug test, to make the determination that an individual violated a drug-free workplace policy.”

The Commission further stated 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. In order 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:

• Designate an interim staff member to assist with making determinations of suspected cannabis use during an employee’s prescribed work hours. This employee should be sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report; and, may be a third-party contractor.

• Utilize a uniform Reasonable Suspicion Observation Report (see sample form provided by the Commission) 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 employer should establish a Standard Operating Procedure for completing such a report that includes: (1) the employee’s manager or supervisor or an employee at the manager or supervisor level; and, (2) an interim staff member that has been designated to assist with determining whether an employee is reasonably suspected of being impaired during an employee’s prescribed work hours, or a second manager or supervisor.

Although the Commission provided a sample Reasonable Suspicion Observation Report, if employers already utilize a Reasonable Suspicion Observation Report to determine when drug testing is necessary, they may continue to do so.

Additionally, the Commission stated that an 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.

Finally, the Guidance noted that CREAMMA contains certain exceptions for employers subject to federal contracts, as well as drug testing mandated by federal law, rules and regulations.

Employers should review their drug testing policies to ensure that their practices are consistent with the new Guidance.