As previously covered in this series, in early 2021 New Jersey legalized recreational marijuana for adults 21 and older when Governor Phil Murphy signed “The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” better known as the CREAMM Act. That post is available here: https://fadv.com/blog/new-jersey-recreational-cannabis-drug-testing-impacts-march-2021/.
The New Jersey CREAMM Act requires that drug tests include “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and a “physical evaluation,” which must be conducted by a “Workplace Impairment Recognition Expert.” The law requires the New Jersey Cannabis Regulatory Commission (NJCRC) to issue regulations establishing certification standards for WIREs, but none have been issued to date.
On 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. This new guidance can be found here: https://www.nj.gov/cannabis/documents/businesses/Business%20Resources/Workplace%20Impairment%20Guidance%20922.pdf?utm_source=pocket_mylist.
Under the guidance, if an employee or vendor trained on impairment plus the suspected employee’s manager/supervisor document behaviors or physical signs of impairment, then that documentation will give rise to a reasonable suspicion to drug test the employee. If the employee then fails the test, the employer may proceed to disciplinary action, including termination. The key take-away from the guidance is 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.”
The NJ-CRC also provides a template to record the documentation of behavior and/or physical signs of impairment, which is referred to as a Reasonable Suspicion Observation Report (RSOR). It is noteworthy that the RSOR is not specific or limited to impairment from cannabis. That template can be found here: https://www.nj.gov/cannabis/documents/businesses/Business%20Resources/Workplace%20Impairment%20Guidance%20Sample%20Form.pdf.
There are two additional important take-aways from the Guidance:
- The guidance also clarifies that employers may also require a drug test as part of a random drug test program or after a work accident which the employer is investigating.
- New Jersey employers are not required to violate federal contracts in order to comply with this guidance.
Accordingly, New Jersey employers should review this Guidance with their legal counsel and consider taking the following steps:
- Prepare a (or use the sample) Reasonable Suspicion Observation Report and accompanying Standard Operating Procedure consistent with the Guidance.
- Identify and train employees who can determine suspected cannabis use during work hours or use a third-party contractor.
- Update employee policies to ensure consistency with the Guidance, and train managers and human resources employees on the Guidance.
The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.
