The purple haze has lifted! As previously noted in our blog, on February 22, 2021, New Jersey Governor Phil Murphy signed the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” which legalized recreational cannabis use in the state.
While the law allows employers to drug test for cannabis, it limits their ability to rely on a positive cannabis test when making employment decisions. It requires a drug test to include “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and a “physical evaluation.”
The “physical evaluation,” which sounds kind of scary, must be conducted by someone certified to provide opinions about an employee’s impairment related to cannabis use. The new law directed the state’s Cannabis Regulatory Commission to adopt standards for a new “Workplace Impairment Recognition Expert,” who must be trained to detect an employee’s impairment from cannabis and to assist when investigating workplace accidents. We’ll call this person the “Pot Pundit.”
In August of 2021, the Commission published its “Personal Use Cannabis Rules,” which said nothing about employer drug testing practices. It did suspend physical evaluations until the Commission could develop standards for the new Impairment Expert.
At long last, on September 9 the Commission released guidance to assist employers with making “workplace impairment” determinations. The Commission has highlighted the need for employers to establish protocols for documenting behavior and physical signs of impairment to develop a reasonable suspicion, and then to utilize a drug test to verify whether the individual has used an impairing substance.
The Guidance states employers can “continue to utilize established protocols for developing reasonable suspicion 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 Guidance also reminds employers they cannot take employment action against an individual “solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.” A positive test result can be considered when “combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s work hours.”
The Guidance provides best practices for employers to help them determine workplace impairment, including:
- • Designating a staff member or third-party contractor to determine impairment and complete the state’s Reasonable Suspicion Observation Report;
• Establishing a standard operating procedure for the completion of the report by an employee’s supervisor with the assistance of the designated staff member;
• Continuing to use their own reasonable suspicion reports and checklists;
• Using “a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment,” and/or an ocular scan. Unfortunately, there is not a universally accepted testing methodology for cannabis workplace impairment. So, this appears to be a work in progress.
As more states enact similar laws in the coming years, the need for a defensible “reasonable suspicion” testing program has become a necessity. Employers should prepare to modify their drug testing policies while providing training and documentation to managers tasked with making on-the-job determinations.
The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.