On September 9, 2022, the New Jersey Cannabis Regulatory Commission (Commission) released interim Guidance (Guidance) on the workplace drug testing provisions of the state’s recreational marijuana law, known as the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (Act).  This is the Commission’s first workplace guidance since the adoption of the Act in February, 2021, and is intended to serve as a placeholder until the Commission formulates and approves standards for Workplace Impairment Recognition Expert (WIRE) certifications. 

The Act authorizes state residents over the age of 21 to engage in the recreational use of marijuana and prohibits employers from taking adverse employment action solely because an employee has cannabis metabolites in their system.  However, the Act does permit employers to enforce workplace policies that prohibit employees from being under the influence of marijuana or impaired by marijuana or marijuana products at work.  In response, the Act created the role of the WIRE, which is an individual designated by the employer who would be certified to assess whether an employee is under the influence in the workplace or during work hours. 

The Act requires employers to utilize WIREs to conduct drug tests and a physical evaluation of the employee.  The Act also requires the Commission to issue regulations establishing certification standards for WIREs; however, the Commission has not issued any regulations to date.  Although the interim guidance does not provide the certification standards for WIREs, it does provide interim procedures employers may utilize in detecting and identifying an employee’s workplace use of, or impairment arising from, suspected use of marijuana or marijuana products. 

First, the Guidance clarifies that a drug test indicating the presence of cannabis alone is insufficient to support an adverse employment action, but that a test combined with “evidence based documentation of physical signs or other evidence of impairment during an employee’s work hours may be sufficient to support an adverse employment action.” 

Second, the guidance suggests that to demonstrate physical signs or other evidence of impairment sufficient to support an adverse employment action, employers should designate an interim staff member who is “sufficiently trained” to assist with making determinations of suspected marijuana use during an employee’s work hours. 

Third, the guidance provides a “Reasonable Suspicion Observation Report” that the designated staff member can utilize to document the behavior, physical signs, and evidence that support the employer’s determination.  Employers are permitted to utilize their own form if they wish to do so. 

Fourth, the guidance suggests that employers establish a standard operating procedure for completing the Reasonable Suspicion Observation Report. 

Finally, the Guidance reiterates the Act’s carve out for federal contractors.  Under the Act, federal contractors are permitted to revise their policies to be consistent with federal law, rules, or regulations, if it is determined that compliance with the Act would result in a probable adverse impact on the federal contractor. 

As a result of this interim guidance, New Jersey employers should review and revise their current drug testing policies to be consistent with the interim guidance.  In addition, employers should designate appropriate supervisors/managers who can serve as the designated person(s) responsible for determining reasonable suspicion of cannabis use/impairment during working hours.  It is important that such supervisors/managers receive appropriate training in impairment detection protocols.  Finally, employers should be sure to use the Reasonable Suspicion Observation Report or a version of this form, and the mandated standard operating procedure developed for these situations, in a manner that is consistent with the interim guidance.

Ballard Spahr’s Labor and Employment Group regularly advises clients on navigating medical and recreational cannabis laws and are available to assist New Jersey employers in compliance measures.