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New Jersey Issues Guidance for Handling Workplace Cannabis Use

A.J. Herrington

By A.J. Herrington

September 13, 2022

young man rolling a very big joint

iStock

regulators last week released guidelines governing marijuana use and enforcement in the workplace, nearly five months after legal sales of marijuana began in the state. Under the guidance released on Friday by the New Jersey Cannabis Commission, positive drug screenings for marijuana will not be enough for an employer to fire a worker for being impaired by cannabis on the job.

Employers and business leaders have been calling on the agency to release guidelines for drug testing in the workplace since sales of

launched at existing medical marijuana dispensaries in April, noting that it was unclear what action can be taken against employees suspected of being high on the job.

“Striking a balance between workplace safety and work performance and adult employees’ right to privacy and to consume cannabis during their off hours is possible,” Jeff Brown, the executive director of the Cannabis Regulatory Commission (CRC),

. “We have been doing that with alcohol without thought.”

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Random Screenings for Cannabis Allowed in New Jersey

Under New Jersey’s cannabis legalization law, employers are allowed to conduct random and pre-employment drug tests for marijuana use and to prohibit cannabis consumption in the workplance. Employers also have the right to administer a drug test “on reasonable suspicion of impairment.”

But with the new guidelines, they will not be permitted to take action against employees solely based on a screening for THC metabolites, which can remain in the body weeks after a person uses marijuana. Instead, such tests must be accompanied by other evidence that a worker is impaired on the job for an employee to take disciplinary action.

“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,”

in the new guidelines. “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.”

Additional evidence of impairment can include cognitive impairment tests or ocular scans, or employers may document other signs of physical evidence with an observation report. Employers can designate a staffer to assist with observing suspected cannabis use, provided the staffer is a third-party contractor, is trained to determine impairment and can complete the observation report.

Employers can also make their own observation reports as long as they follow the guidelines issued by the commission. Companies can also make use of workplace impairment recognition experts (WIREs), who must be specially trained and certified to assess signs of workplace substance use, including alcohol, cannabis and other drugs. The CRC is still developing regulations to govern WIREs and their use in the workplace.

Brown called the guidance the “first step in moving to permanent regulations for workplace impairment recognition experts.”

“We’ve learned how to live with legal alcohol for quite some time, and employers deal with people on other substances in the workplace,”

. “This is evidence, objective-based manner to do that while we develop those permanent regulations.”

Ray Cantor, deputy chief government affairs officer of the New Jersey Business and Industry Association, said the organizations members “are pleased that the CRC has issued guidance which provides a path forward for employers to maintain a drug free workplace.”

“And that includes an alternative pathway to handling reasonable suspicion cases without using WIREs,” Cantor wrote in an email to NJBIZ. “We are also pleased that the guidance released by the CRC today has incorporated a number of our suggestions and we look forward to working with the commission on its formal WIRE regulations, while also informing our members of their options as it relates to enforcing workplace safety.”

A.J. Herrington

About The Author

A.J. Herrington

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