NJ Cannabis Regulatory Commission Interim Guidance

Recently, the NJ Cannabis Regulatory Commission (NJCRC) published interim guidance on workplace drug testing provisions as part of the state’s recreational cannabis law, which will act as a placeholder until regulations are officially published. The guidance will allow employers to continue using their existing policies for drug testing, and reaffirms that the use of Workplace Impairment Recognition Experts (WIRE) is not required yet.

For now, the Guidance on Workplace Impairment advises that, at least for now, employers do not need to use a WIRE to conduct a physical evaluation to determine suspected cannabis use or impairment during working hours. This is because the WIRE certification standards have not yet been published.
Some key take aways include:

• Employers are prohibited from taking adverse action solely because an employee has cannabis metabolites in their system – However, an adverse action may be permissible where there is a reliable drug test that detects the presence of cannabinoid metabolites AND evidence of physical signs of impairment during an employee’s work hours.
• Interim status of the Guidance – The current guidance is intended to serve as guidance until the NJ CRC formulates and approves standards for WIRE certifications.
• Designated staff member or contractor to assist with determinations of suspected cannabis use – An employer may allow a 3^rd party contractor or a sufficiently trained designated employee to determine impairment to document signs and behaviors of suspected workplace impairment.
• Utilize a Reasonable Suspicion Report – Provided by the NJCRC, a sample Reasonable Suspicion Observed Behavior Report Form can be used by employers if they wish to do so, but is not required.
• Standard operating procedure – Employers should maintain a “Standard Operating Procedure” which identifies a process for completing the Reasonable Suspicion Observation Report described above.

We recommend that employers should consider taking the following actions:

1. Prepare two template forms.
   – Reasonable Suspicion Observation Report (or use the sample provided above)
   – Standard Operating Procedure consistent with guidance.
2. Identify and train employees who can determine suspected cannabis use during work hours or use a 3^rd party contractor.
3. Update employee policies to ensure consistency with the Guidance.
4. Train managers and HR employees on the Guidance.
5. Send memo with updated policies to ALL employees.