Cannabis legalization has created many challenges for New Jersey employers who want a drug-free workplace, especially when they suspect an employee is under the influence of cannabis at work. The question most employers in New Jersey ask themselves: What can I do if I suspect someone is under the influence of cannabis at work? – was answered.
What CREAMMA says about cannabis use by employees
Cannabis Regulation, Law Enforcement Assistance and Marketplace Modernization Act (CREAMMA) legalized recreational cannabis in New Jersey for adults 21 and older and created the Cannabis Regulatory Commission (CRC) to oversee New Jersey’s medical and adult cannabis markets. CREAMMA contains several provisions dealing with employment issues, such as drug testing and legal protections for employees who use cannabis outside of the workplace.
Under CREAMMA, employers can still prohibit cannabis in the workplace, which includes prohibiting the possession and use of cannabis in the workplace, as well as intoxication during working hours.
Employers may also require random testing, or testing as part of pre-employment screening, or regular screening of current employees to determine usage during an employee’s prescribed work hours. The law also expressly provides that an employer may also require an employee to undergo a drug test if:
- The employer reasonably suspects that the employee is using an article of cannabis in the performance of their job responsibilities;
- There are observable signs of intoxication associated with the use of a cannabis product; Where
- The doping test follows an accident at work under investigation by the employer.
Employers may use the results of such a drug test to determine appropriate employment action regarding the employee. However, a drug test for an employee must meet an increased standard, which includes scientifically sound objective testing methods and procedures, such as blood, urine, or saliva testing, and physical assessment to determine an employee’s impairment status. CREAMMA provides that the physical assessment must be performed by a CRC-certified Workplace Impairment Recognition (WIRE) expert. However, the CRC has not yet proposed rules for WIRE training and certification.
CRC Guidelines on Impairment in the Workplace
Although the WIRE regulations are not yet in place, the CRC has published Advice on disabilities in the workplace (Guidance) to help employers deal with employees suspected of being under the influence of cannabis at work. The guidelines point out that a drug test indicating the presence of cannabinoid metabolites in the employee’s bodily fluids alone is insufficient to warrant adverse employment action. This is where the drug recognition process begins that balances employee interests and workplace safety. The Guide indicates that a process involving scientific testing combined with factual documentation of physical signs and/or other evidence of impairment during an employee’s prescribed working hours may be sufficient to warrant adverse health action. use. The CRC has also created a model form, known as “Reasonable Suspect” Observation Reportwhich can be used to document behavior, physical signs and evidence that supports an employer’s determination that an employee is reasonably suspected of being under the influence during an employee’s prescribed work hours.
In the Guide, the CRC also acknowledges that it is difficult to determine whether employees are impaired by cannabis in the workplace, as individuals can test positive for a long time after consumption. “While test accuracy is improving, there is no perfect test for detecting current cannabis tampering,” the Guidance says. “Therefore, best practice is for employers to establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to use a drug test to verify whether whether or not a person has used a disabling substance in recent history.”
While CREAMMA provides that WIREs can be certified and help document physical and behavioral signs of intoxication, CRC notes that the law does not prevent employers from continuing to use established protocols to develop reasonable suspicion of faculties. impaired and to use this documentation, along with other evidence, such as a drug test, to determine that an individual has violated a workplace drug-free policy. Until the WIRE standards are in place, employers must design their own protocols, which must be informed by the Guide.
The guidelines outline how employers should document physical signs or other evidence of impairment that support an adverse employment action against an employee suspected of cannabis use or impairment during work hours. For example, the CRC advises employers to designate an acting staff member to assist in determining an employee’s suspected cannabis use during prescribed work hours, such employee being sufficiently trained to determine impairment and qualified to complete the reasonable suspicion observation report.
The CRC also requires employers to use the Uniform “Reasonable Suspicion” Observation Report which documents behavior, physical signs and evidence to support an employer’s determination that an employee is reasonably suspected of being under the influence during an employee’s prescribed working hours. In addition, the employer must establish a standard operating procedure for completing such a report that includes: the employee’s manager or supervisor or an employee at the manager or supervisor level; and an acting staff member who has been designated to assist in determining whether an employee is reasonably suspected of being intoxicated during an employee’s prescribed working hours, or a second manager or supervisor.
The guidelines also provide that employers may also use a cognitive impairment test, a scientifically valid, objective, reproducible and standardized automated test of an employee’s impairment, and/or an eye scan, as physical signs or evidence to establish a reasonable suspicion of cannabis use. or a disability at work.
Finally, CRC cautions that adverse employment actions can impact employees’ rights protected under various laws, including, but not limited to, state and federal anti-discrimination laws. The guidelines also provide that “when incorporating these guidelines, employers should ensure compliance with all federal and state employment laws.”
Takeaways for NJ Employers
As the guidelines demonstrate, New Jersey’s cannabis regulations remain a work in progress. To protect your business from potential employment-related liability, we strongly encourage you to work with an experienced attorney when implementing workplace policies and procedures regarding cannabis.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
