On February 22, 2021, New Jersey Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (the “Act”), legalizing the recreational use of cannabis for adults over 21. However, the Act has left many employers with questions as to how to handle enforcement of a drug-free workplace. Almost 6 months later, on August 19, the New Jersey Cannabis Regulatory Commission (the “CRC”) finally issued guidance which shed little light on employee concerns. This article will discuss how the Act has changed drug-related protocol in the workplace and how employers can go forward to be in compliance with the recent guidance.
Employment Provision
The Act contains an employment provision that prohibits employers from taking adverse action against employees that use cannabis items. It further prohibited employers from taking adverse action if an employee’s drug test comes back positive for the presence of cannabis. Employers are also prohibited from rescinding offers of employment based on a pre-employment drug screening. These provisions came into effect with the implementation of the CRC rules. Although employers are not permitted to act based on the presence of cannabis in a drug test, employers may prohibit use and possession at work and are also able to take adverse action against employees that come to work while under the influence.
Determining Impairment
The Act sets out a two-step process for employers to determine if an employee is “under the influence.” First, employers are required to receive input from a Certified Workplace Impairment Recognition Expert who will conduct a physical evaluation and give their opinion as to whether or not they believe the employee is impaired. Second, the employer must administer “scientifically reliable objective testing methods.”
The rules issued by the CRC acknowledge that Certified Workplace Impairment Recognition Expert requirement is not yet in effect as the process to obtain the certification has not been determined. The process from certification should be issued by the CRC shortly. Until then, employers are not required to conduct a physical evaluation of the employee and are permitted to conduct drug testing. However, employers that have reason to believe their employee is impaired need to keep thorough documentation of their reasonings when administering a drug test to justify their adverse action.
Conclusion
Administering drug tests in New Jersey workplaces is still permissible but employers may be weary to take adverse action against an employee for a positive cannabis result without reasonable belief that the employee is impaired by the drug while at work. Regular drug testing no longer serves the same purpose as employers cannot act based solely on drug test results. Maintaining thorough documentation of the employer’s reasonable belief an employee is impaired by drugs while at work is vital in justifying any potential adverse action. New Jersey employers will need to review their drug testing policies and thoroughly train supervisory staff that will oversee the documentation if needed.