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New Jersey Publishes Guidance For Employers on Marijuana

On September 9, 2022, the New Jersey Cannabis Regulatory Commission published guidance for employers to address marijuana impairment in the workplace. The guidance affirms that employers may not take any adverse against an employee solely due to the presence of marijuana showing up on a drug screening panel, as the drug can remain in bodily fluids for a prolonged period of time and there is no perfect test for detecting present marijuana impairment. However, the guidance does advise that employers may prohibit marijuana in the workplace by maintaining a drug-free workplace.

Key Highlights of the Guidance

While a positive test for marijuana cannot be the only reason for taking adverse employment action, employers may require employers to undergo a drug test based on reasonable suspicion of usage while engaged in the performance of the employee’s work responsibilities, or upon finding any observable signs of impairment related to usage of marijuana or marijuana products, or as part of a random drug test program, or following a work-related accident subject to investigation by the employer.

Employers may designate an interim staff member or third-party contractor to assist with evaluating physical signs or other evidence of impairment that may be sufficient to support an adverse employment action against an employee for suspected marijuana use or impairment during an employee’s prescribed work hours. This designate should be sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report.

The guidance does not, however, provide the certification standards for becoming a “Workplace Impairment Recognition Expert” who will be tasked with determining marijuana impairment. The “Experts” can be “certified full- or part-time employees, or others contracted to perform services on behalf of an employer, based on education and training in detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance, and for assisting in the investigation of workplace accidents.” It is unclear when the state will have these standards implemented.

Next Steps for Employers

Employers should review their pre-employment drug screening processes to ensure that marijuana use is no longer disqualifying. Other marijuana testing (i.e., post-accident or reasonable suspicion) may also require more attention, and employers should review the law against their substance abuse and/or drug testing policies and make changes as needed, including deciding whether to test for marijuana at all.

Employers should remind employees of any existing prohibitions on marijuana use, possession and impairment during working hours, on employer premises and while using a company equipment or other property.

Until an “Expert” has been certified in accordance with any standards set by the state, employers should also ensure they provide some form of training to their interim designate on ways to observe when someone is working while impaired and on how to complete the Reasonable Suspicion Observation Report.

It is also recommended that employers consult with their legal counsel to understand their obligations under state law, particularly as they relate to the implementation of existing or modified substance abuse policies in the workplace.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.