By Jennifer L. Mora and Frederick T. Smith

Seyfarth Synopsis As previously reported here, on February 22, 2021, New Jersey Governor Phil Murphy signed the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (CREAMMA), which amended the New Jersey Constitution to legalize recreational cannabis.

The law allows employers to conduct numerous forms of drug testing for cannabis, but limits an employer’s ability to rely on a positive cannabis test result in making employment decisions. It requires that a drug test include both “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and a “physical evaluation.” The “physical evaluation” must be conducted by an individual certified to provide an opinion about an employee’s state of impairment, or lack of impairment, related to the use of cannabis. The law tasked the Cannabis Regulatory Commission with adopting standards for this “Workplace Impairment Recognition Expert” (WIRE), who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances and to assist in the investigation of workplace accidents.

On August 19, 2021, the Commission published its “Personal Use Cannabis Rules,” which said virtually nothing about employer drug testing practices. It did, however, suspend the physical evaluation requirement until the Commission “develops standards” for the WIRE. Although the law has been on the books for 18 months, the Commission has not adopted any standards.

Instead, on September 9, 2022, the Commission released interim Guidance to assist employers with making “workplace impairment” determinations. In the Guidance, the Commission highlights the need for employers to “establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test to verify whether or not an individual has used an impairing substance in recent history.”

The Guidance advises that employers can “continue to utilize established protocols for developing reasonable suspicion of impairment 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 goes on to remind employers that they cannot take employment action against an individual “solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.” However, 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 prescribed work hours.”

Fortunately, the Guidance provides best practices for employers to consider that will help them determine workplace impairment, at least until the Commission issues the WIRE standards, which include:

  1. Designating an interim staff member or a third-party contractor who is trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report developed by the State.
  1. Establishing a standard operating procedure for the completion of a Reasonable Suspicion Observation Report by an employee’s manager or supervisor or another manager or supervisor, with the assistance of the staff member described above.
  1. Continuing to use their own reasonable suspicion observation reports or checklists.
  1. Using cognitive impairment tests, “a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment,” and/or an ocular scan. We find this last category to be confusing; we do not know how practical or effective the first and third options are in this context, and in our opinion, the science, while improving, has not led to a testing methodology that meets the second definition.

As more states and localities enact laws prohibiting employers from considering positive cannabis test results absent other evidence of workplace impairment, the need for a robust and defensible reasonable suspicion testing program is critical. While we await the Commission’s WIRE standards, New Jersey employers should consider modifying their drug testing policies and practices, providing training and documentation to managers tasked with making reasonable suspicion determinations, and determining the drug test most appropriate to use in conjunction with workplace impairment determinations. We will provide an update as soon as the new regulations are adopted.