Clearing the Drug Testing Haze Under Legalized Cannabis

In light of the legalization of cannabis, many New Jersey employers wonder whether they can still drug test their employees.  The answer is yes, under the following circumstances:

• Upon reasonable suspicion of an employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities;
• Upon finding any observable signs of intoxication, related to the usage of a cannabis item;
• Following a work-related accident subject to investigation by the employer;
• Randomly; and
• As part of a pre-employment screening, or regular screening of current employees to determine use during an employee’s prescribed work hours.

Notwithstanding this, employers need to recognize that the New Jersey statute legalizing marijuana provides that “No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, and 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 from engaging in conduct permitted under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act.”

The statute further provides that a Workplace Impairment Recognition Expert (“WIRE”), should be utilized by employers to determine if an employee is impaired. Although a WIRE is required to be utilized, New Jersey still needs to issue the certification procedures and standards to be qualified as a WIRE.

In September 2022, New Jersey issued guidance[1] that provides, in order to establish the requisite observable signs or other evidence of impairment sufficient to support an adverse employment action against an employee for suspected cannabis use or impairment during the employee’s prescribed work hours, the employer may:

• Designate an interim staff member to assist with making determinations of suspected cannabis use during the employee’s prescribed work hours. This employee should be sufficiently trained to determine impairment and qualified; the guidance does not define “sufficiently trained and qualified,” to complete the Reasonable Suspicion Observation Report[2], addressed below. Additionally, an employer may hire a third-party contractor to make such a determination.
• Utilize a uniform Reasonable Suspicion Observation Report, a sample form was provided in the guidance, however, an employer can also use their own form, that documents the behavior, physical signs, and evidence that supports the employer’s determination that an employee is reasonably suspected of being under the influence during an employee’s prescribed work hours.

The employer should establish a standard operating procedure for completing such a report that includes:

1. 1. The employee’s manager or supervisor or an employee at the manager or supervisor level; and
   2. An interim staff member that has been designated to assist with determining whether an employee is reasonably suspected of being impaired during an employee’s prescribed work hours, or a second manager or supervisor.

• Use a cognitive impairment test, a scientifically valid, objective, consistently repeatable, a standardized automated test of an employee’s impairment, and or an ocular scan, as physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work.

It is important to note that there is a disclaimer at the end of the guidance, which provides:

“The purpose of this guidance is to clarify and explain the New Jersey Cannabis Regulatory Commission‘s understanding of the existing legal requirements under the governing law. This guidance does not impose any additional requirements that are not included in the law and does not establish additional rights for any person or entity. Please note, however, that adverse employment actions may impact employees’ protected rights under various laws including, but not limited to, state and federal anti-discrimination laws. When incorporating this guidance, the employer should ensure compliance with all state and federal employment laws.”

The recent passing of the Cannabis Research Act [3]may result in more individuals using cannabis as it permits doctors to discuss the “currently known potential harms and benefits of marijuana and its derivatives,…”

Employers subject to DOT regulations[4], or other laws that specifically address cannabis use, must comply with those laws regarding an employee that tests positive for cannabis. An employer who contracts with the federal government should proceed carefully in their application of drug-testing policies and are advised to reach out to legal counsel for guidance before terminating an employee for merely having a positive cannabis test result, even if an employer believes it is in violation of their federal contract[5].

While cannabis testing remains permitted, absent reason to believe an individual may be impaired, an employer should be careful and refrain from taking an adverse action based solely on a positive cannabis test, which limits the usefulness of pre-employment or random cannabis testing. Until further guidance is issued, employers should proceed carefully in their application of drug-testing policies and are advised to reach out to legal counsel for guidance regarding the policies and any terminations for positive results[6].

About the Author:

Tracy A. Armstrong is a Shareholder and a member of the Employment and Cannabis Law teams at Wilentz, Goldman & Spitzer, P.A. She has over 25 years’ experience representing employers across industry sectors in all aspects of federal and state labor and employment law.

[1] https://www.nj.gov/cannabis/documents/businesses/Business%20Resources/Workplace%20Impairment%20Guidance%20922.pdf