Interim Guidelines Address Employment Protections in New Jersey Cannabis Law

Since early 2021, New Jersey employment law has protected workers in this state from discrimination or other adverse employment actions based on their use of cannabis outside work, as well as their refusal to engage in cannabis use. Employers may still prohibit the use of cannabis in the workplace, and they may take reasonable measures to prevent employees from working while under the influence of cannabis. State law limits the use of drug testing by employers, but the New Jersey Cannabis Regulatory Commission (NJCRC) still has not issued final guidelines on this part of the law. It issued extensive guidelines in September 2021 that did not address employment issues. One year later, the NJCRC issued interim guidance on employment, which offers some direction on workplace drug testing.

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) became law in February 2021. Section 48 of CREAMMA, codified as § 24:6I-52 of the New Jersey Revised Statutes, addresses cannabis in the workplace. It prohibits discrimination based on an employee’s or job applicant’s cannabis use, or lack thereof. If an employee tests positive for cannabinoid metabolites because of cannabis use that is legal under CREAMMA, their employer may not take adverse action against them solely on that basis.

The statute allows employers “to maintain a drug- and alcohol-free workplace,” such as by not allowing employees to be under the influence of cannabis during work hours. Employers may require their employees to submit to drug tests under certain circumstances:

– Random or regularly scheduled testing;
– Pre-employment screening;
– Reasonable suspicion that an employee is using cannabis while on the job;
– “[O]bservable signs of intoxication” by cannabis; or
– Investigation of a work-related accident.

Employers must use “scientifically reliable objective testing methods and procedures” in connection with “a physical evaluation in order to determine an employee’s state of impairment.” The individual responsible for conducting this physical evaluation must have “the necessary certification” to offer an informed opinion on whether an employee exhibits signs of impairment due to cannabis use. CREAMMA directs the NJCRC to work with the Police Training Commission (PTC) to develop guidelines for Workplace Impairment Recognition Expert (WIRE) certification.

The PTC currently certifies police officers as Drug Recognition Experts (DREs) who may offer testimony about impairment by various drugs in DWI cases. The statute anticipates that WIRE certification will be similar to DRE certification, but standards for WIRE certification have yet to appear. The NJCRC issued an extensive set of rules in September 2021 that did not deal with employment. The rules state that employers do not need to conduct physical evaluations until the NJCRC publishes those standards.

The NJCRC came closer to fulfilling its obligations under CREAMMA in early September 2022 when it released a document entitled “Guidance on ‘Workplace Impairment’.” While the document does not contain standards for WIRE certification, it provides a “Reasonable Suspicion Observed Behavior Report” that employers may use to document “reasonable suspicion” of on-the-job cannabis use. The form gives examples of possible physical and behavioral indicators of the use of cannabis or other substances. The list covers a broad range of observations, including both “euphoric” and “tearful” behavior.

The disability discrimination lawyers at the Resnick Law Group represent workers in New Jersey and New York in claims based on unlawful workplace practices. If you are involved in a dispute with an employer, they are available to answer your questions and discuss your concerns. Contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to see how we can help you.

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