As we previously posted, New Jersey’s Cannabis Regulatory Enforcement Assistance and Modernization Act created significant protections for employees who use recreational cannabis products. More specifically, the Act prohibits employers from taking an adverse action against an employee based solely upon a positive drug test for marijuana; instead requiring that a “Certified Workplace Impairment Recognition Expert” also determine the employee to be impaired.
Even though the Act was enacted in February 2021, the Cannabis Regulatory Commission still has not promulgated any regulations for the certification of Workplace Impairment Recognition Experts. Nevertheless, on September 9, 2022, the Commission did issue guidance that permits employers to use reasonable suspicion standards to determine whether an employee is impaired.
While the Act prohibits employers from taking adverse actions against employees for out-of-work cannabis use, employers are permitted to discipline employees for being impaired at work. The Commission’s recent guidance, although not establishing Workplace Impairment Recognition Experts, does explain that until the Commission promulgates regulations for such experts, employers may continue to use “established protocols” for documenting a reasonable suspicion of impairment, along with other evidence such as a drug test, to determine whether an employee violated a drug free workplace policy. The Commission, among other recommendations, suggests that employers use the Reasonable Suspicion Observed Behavior Report, along with drug testing, to determine the impairment of an employee.
Until the Commission promulgates its regulations, employers in New Jersey should ensure that they have a drug free workplace policy in their employee handbook and that supervisors are familiar with the Reasonable Suspicion Observed Behavior Report and that it is used in any situation involving an employee suspected of being impaired at work.
If you have questions about compliance with New Jersey’s employment laws, or your business’s employment practices, please contact us at (201) 345-5412, or using our online scheduling system, to schedule a complimentary consultation.
Information contained in this blog is provided for informational purposes and does not constitute legal advice or opinion. You should consult with an attorney regarding the specifics of your matter or legal issue.