New Jersey Releases Guidance for Identifying Suspected Employee Impairment

Like several other states, New Jersey law restricts how employers may make employment decisions based on cannabis use. The law states,

“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 [by state law].”

While the restrictions are fairly comprehensive, there are still situations where employers can test for marijuana. An employer can require an employee to take a drug test when there is “reasonable suspicion of an employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities, or upon finding any observable signs of intoxication related to usage of a cannabis item, or following a work-related accident subject to investigation by the employer.”

Drug tests may also be done randomly by employers, or as part of pre-employment screening, or regular screening of current employees to determine use during an employee’s work hours Drug tests shall include scientifically reliable objective testing methods to determine the state of impairment. Methods might include blood, urine, or saliva, in addition to a physical evaluation.

How Employers May Identify Impairment

A portion of New Jersey’s law relates to whether or not an employee shows signs of impairment on the job. So, what signs of impairment from cannabis use might employers look for? The law states:

“In order to better ensure the protections for prospective employees and employees against refusals to hire or employ, or against being discharged or having any other adverse action taken by an employer, while simultaneously supporting the authority of employers to require employees undergo drug tests [permitted by the law]… the [New Jersey Cannabis Regulatory Commission] shall prescribe standards for a Workplace Impairment Recognition Expert certification to be issued to full- or part-time employees.”

Standards for issuing Workplace Impairment Recognition Expert (WIRE) certifications have not yet been released by the New Jersey Cannabis Regulatory Commission. However, on September 9, 2022, the Commission issued guidance for employers to identify signs of impairment while they work to identify and approve certification standards.

According to the guidance, in order to demonstrate physical signs or other evidence of impairment during the employee’s scheduled work hours employers may:

• Designate an interim staff member to help make determinations of suspected cannabis use during an employee’s scheduled work hours. The designated employee should be trained to determine impairment and qualified to complete observation reports.  Employers may use a third-party contractor.
• Use a uniform “Reasonable Suspicion” Observation Report to document the behavior, physical signs, and supporting evidence of the suspected impairment.
• Establish a Standard Operating Procedure for completing the report.
• Use a cognitive impairment test, a scientifically valid, objective, consistently repeatable, 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.

Employers in the state of New Jersey may want to review the new guidance with their legal team to understand how this might impact their current drug testing policies and procedures.