In an effort to balance safety with employees’ rights, the New Jersey Cannabis Regulatory Commission issued guidance for workplaces as a first step toward approving standards for Workplace Impairment Recognition Expert (WIRE) certifications. 

Released Sept. 7, the guidance states that employees cannot be acted against solely because of the presence of cannabis in their body, but that employers have the right to administer a drug test “on reasonable suspicion of impairment.” 

“Striking a balance between workplace safety and work performance and adult employees’ right to privacy and to consume cannabis during their off hours is possible,” CRC Executive Director Jeff Brown said in a statement. “We have been doing that with alcohol without thought.” 

The new guidance is intended to be used until the CRC implements WIRE certification standards, which will be used to detect impairment from cannabis or other substances for employees or contractors. 

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According to the guidance, “Pursuant to N.J.S.A. 24:6I-52a(1), and in accordance with all state and federal laws, an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid as a result of engaging in conduct permitted under N.J.S.A. 24:6I-31 et al.” 

However, employers do have the right to maintain a drug-free workplace and may require an employee undergo a drug test “upon reasonable suspicion” that the they are using cannabis or appear impaired while working or following a work-related accident. 

According to the guidance, an employer cannot use the test alone to take disciplinary action against the employee; the employer must combine the results with “evidence-based documentation” of impairment during the employee’s work hours.

The CRC also provided guidelines for establishing this documentation, including designating another staff member or a third-party contractor who’s trained to complete the Reasonable Suspicion Observation Report; using this report to document the behavior, physical signs and evidence (the employer should also have a standard procedure for completing this report); and using a cognitive impairment test. 

The complete CRC guidelines can be found by clicking here. 

In an email to NJBIZ, Ray Cantor, deputy chief government affairs officer of the New Jersey Business & Industry Association, said, “We are pleased that the CRC has issued guidance which provides a path forward for employers to maintain a drug free workplace. And that includes an alternative pathway to handling reasonable suspicion cases without using WIREs. We are also pleased that the guidance released by the CRC today has incorporated a number of our suggestions and we look forward to working with the commission on its formal WIRE regulations, while also informing our members of their options as it relates to enforcing workplace safety.” 

Regarding federal contracts, the CRC guidance noted that “employers may be required by federal contract or law to follow specific protocols related to determining reasonable suspicion and drug testing and are permitted under N.J.S.A. 24:6I-52 to continue to do so.” 

NJBIZ reporter Matthew Fazelpoor contributed to this report.   Reprinted by EnVeritas Group with permission from NJBIZ. www.enveritasgroup.com POA102022

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