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New Jersey releases new workplace impairment guidance

11/03/22

Author: ADP Admin/Tuesday, November 1, 2022/Categories: Compliance Corner , State Compliance Update, New Jersey

The New Jersey Cannabis Regulatory Commission (NJCRC) has released guidance and provided a sample form to help employers address workplace impairment due to employee cannabis use.

Background:

In 2021, Governor Phil Murphy signed Assembly Bill 21, also known as the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, into law, which:

  • Legalized adult use of recreational cannabis.
  • Restricted an employer’s ability to test for and take adverse action against an employee based upon an employee's off-duty cannabis use.
  • Created a commission to train Workplace Impairment Recognition Experts (WIREs) to detect and identify workplace use or impairment and help investigate workplace accidents.

The details:

The NJCRC has released new guidance on workplace impairment for employers while it finishes its standards for WIRE certifications.

The new guidance clarifies the process for demonstrating physical signs or other evidence of impairment that are sufficient to support an employer's adverse employment action against an employee for the employee's suspected cannabis use or impairment during work.

Physical signs of impairment:

Under the guidance, an employer may use the following as physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work:

  • A cognitive impairment test.
  • A scientifically valid, objective, consistently repeatable, standardized, and automated test of an employee's impairment; and/or
  • An ocular scan.

The guidance clarifies that a scientifically reliable and objective method that tests for marijuana is, by itself, insufficient to take adverse employment action against an employee. However, the following may be sufficient to support adverse employment action:

  • Drug test results showing cannabinoid metabolites in an employee's bodily fluids.
  • Evidence-based documentation that captures physical signs or other evidence of impairment during an employee's work hours.

Evidence-based documentation:

Employers may also designate an interim staff member or third-party contractor (designee) to assist in determining suspected cannabis use during an employee's work hours. This individual should be sufficiently trained to determine impairment and qualified to complete a Reasonable Suspicion Observation Report.

Reasonable Suspicion Observation Report:

Employers may use a Reasonable Suspicion Observation Report, such as the NJCRC's sample form, to document an employee's behavior, physical signs, and evidence that supports why they reasonably suspect an employee of being under the influence during work.

Note: Employers that already use a Reasonable Suspicion Observation Report to determine when drug testing is necessary may continue to do so.

The guidance also states that employers should establish a standard operating procedure for completing a Reasonable Suspicion Observation Report that includes:

  • The employee's manager or supervisor, or an employee at those levels.
  • A designee, or a second manager or supervisor.

Next steps:

  • Review and revise drug-testing and drug-free workplace policies and procedures.
  • Train HR personnel and managers on:
  • Consider adopting and implementing a Reasonable Suspicion Observation Report, when administering drug testing policies to help ensure compliance with the guidance.

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