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New Jersey Cannabis Regulatory Commission Issues Workplace Guidance On Reasonable Suspicion Determinations –



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The New Jersey Cannabis Regulatory Commission (“the
Commission”) on September 9, 2022 issued long-awaited guidance
for employers on how to respond when employees are suspected of
marijuana impairment. This is the Commission’s first workplace
guidance since the adoption of the New Jersey Cannabis Regulatory,
Enforcement Assistance, and Marketplace Modernization Act
(“the Act”), which Governor Murphy signed on February 22,
2021. The Act legalized the use of recreational marijuana for
adults over the age of 21 as a matter of state law, but created
many obstacles and uncertainties for employers seeking to maintain
a drug-free workplace.

The guidance does not provide the sort of detail many employers
were hoping for. The Commission failed to create a regulatory
scheme for designating workplace impairment recognition experts,
but does provide reassurance that reasonable-suspicion testing may
continue so that employers may make decisions about worker
marijuana impairment, as directed in the legalization statute.

The current law 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 based on an
employee’s use of marijuana while off duty. At the same time,
employers are permitted to enforce workplace policies that prohibit
employees from being under the influence of marijuana or impaired
by marijuana or marijuana products at work. In essence, the law
prohibits employers from making employment decisions solely upon
the results of a drug test for marijuana; they must also be able to
point to evidence that the individual was impaired at work.

To address this issue, the Act created the role of Workplace
Impairment Recognition Expert (WIRE). The WIRE, an individual
designated by the employer, would be certified to assess whether an
employee is under the influence in the workplace or during work
hours. A WIRE’s assessment, combined with a positive drug test,
would enable an employer to take an adverse action against the
employee.

Although the Act went into effect nearly 18 months ago, the
Commission has not adopted any regulations setting forth how to
become a WIRE, what a WIRE may do, or the physical signs a WIRE
must look for to evaluate the employee, etc. This lack of
information has created confusion and frustration for employers.
While the Commission still has not formulated the standards on how
to become a certified WIRE, it has now issued guidance delineating
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.

The guidance suggests that the recommended course of action for
employers is to establish evidence-based protocols and to document
observed behavior and physical signs of impairment that give rise
to reasonable suspicion or impairment, and then to utilize a drug
test to verify whether an individual has used an impairing
substance in recent history. The Commission suggests that the
employer designate a staff member to assist in making
determinations regarding suspected drug use. The guidance indicates
that the individual making reasonable suspicion determinations may
use, among other things, cognitive impairment tests—a
scientifically valid, objective, consistently repeatable,
standardized automated test designed to measure an employee’s
impairment—or an ocular scan, as possible physical signs or
evidence to establish reasonable suspicion of cannabis use or
impairment at work. (The guidance does not address whether
impairment tests of the type described are available or discuss the
impact of the Americans with Disabilities Act or the New Jersey Law
Against Discrimination on the use of tests that may qualify as
medical examinations.)

The Commission recommends that the staff member making a
reasonable suspicion determination utilize a “Reasonable
Suspicion Observation Report” (a sample of which has been
provided by the Commission and can be found here, to document the physical signs and
evidence of suspected drug use, as well as the testing procedures
used. The form lists several physical signs or symptoms and
behavioral indicators that can be evaluated to assist in the
determination. The guidance also suggests that a second individual,
such as the employee’s manager or supervisor, be involved in
the testing procedures. If a second individual is used, that person
also must complete a separate Reasonable Suspicion Observation
Report.

While the Commission works on promulgating regulations for WIRE
certification, employers should review and update their policies
and exercise caution in making reasonable suspicion determinations.
Employers are advised to reach out to legal counsel for guidance in
navigating this evolving area of law.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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