Cannabis Regulatory Commission Releases Guidance on Workplace Impairment
By: Jeffrey P. Catalano
Pursuant to N.J.S.A. 24:6I-52a(1), New Jersey employers may not subject an employee to an adverse action based solely due to a positive test for cannabis metabolites. The statute states that an employer may require an employee to undergo a drug test “upon 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 the usage of a cannabis item” or “following a work-related accident subject to investigation by the employer.”
The statute also states that a drug test may also be done randomly by the employer, or as part of a pre-employment screening, or regular screening of current employees to determine use during an employee’s prescribed work hours. However, this test must include a physical evaluation conducted “by an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof . . .”
Pursuant to N.J.S.A. 24:6I-52a(2)(a), the New Jersey Cannabis Regulatory Commission (“CRC”) was charged with prescribing standards for a Workplace Impairment Recognition Expert (“WIRE”) certification, to be issued to those responsible for these physical evaluations. Over a year and a half after the passage of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”), the CRC has provided some interim guidance until the CRC “formulates and approves standards for WIRE certifications.”
The CRC has taken the position that CREAMMA does not impede the ability of employers to continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, to make the determination that an individual violated a drug free workplace policy.
The CRC clarified that a scientifically reliable objective testing method that indicates the presence of cannabis in the employee’s bodily fluid alone is insufficient to support an adverse employment action. However, such a test combined with “evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action.”
Employers are guided to some options to meet the “evidence-based documentation” necessary to provide for an adverse employment action:
- Employers can designate an interim staff member or third-party contractor to assist with making determinations of suspected cannabis use during an employee’s prescribed work hours. While the guidance states that the employee or contractor “should be sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report”, the CRC does not expound on what training or qualifications are necessary to meet this option.
- Employers may 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.” However, the CRC does not clarify what impairment tests meet its definition of “scientifically valid.” However, Special Master Joseph Lisa’s report in State v. Olenowski may provide some clarity. In that report, Judge Lisa determined that testimony by drug recognition experts, or DREs, is reliable and admissible as evidence of intoxication. While the report is not a legal decision and while the parties still have briefs to file, Judge Lisa wrote that “[t]he DRE program replicates generally accepted medical practices in identifying the presence of impairing drugs and the likely category of those drugs in an individual exhibiting indicia of impairment.”
- Employers can utilize a uniform “Reasonable Suspicion Observation Report” that documents the behavior, physical signs and evidence that support the employer’s determination that an employee is reasonably suspected of being under the influence during an employee’s prescribed work hours. However, the CRC does not expound on what “behavior, physical signs and evidence” are sufficient to meet the “evidence-based documentation” standard for an adverse action. Moreover, Judge Lisa’s report states that the DRE process is reliable when all of the observations are considered and assessed together by trained individuals applying the protocol correctly. Each of the individual 12 steps of the DRE process were determined to be reliable “subject to credibility and weight assessment by the factfinder.” Moreover, the expert witnesses “universally agreed . . . that an evaluator, whether in the medical context or a DRE, would never form an opinion that would be accepted as reliable based upon any one or even a few isolated factors. All of the observations must be taken into consideration and assessed together.” As such, employers appear to be forced to engage with each reasonable suspicion test on a case-by-case basis without much in the way of guidance as to what evidence is enough.
The CRC’s guidance offers some clarity as to the perplexing problem of legalized cannabis in the workplace. Currently, there is no objective test to determine whether a person is under the influence of cannabis at the current moment. Urine tests could come back positive even if the cannabis use occurred a month earlier. A blood test can pinpoint the presence of tetrahydrocannabinol – or THC, the psychoactive component in cannabis – to within 12 to 24 hours, but not immediate intoxication.
Moreover, this guidance does not address how much longer employers must wait for certification standards for WIREs when performing random drug tests. While employers should explore training supervisors on valid methods to observe employee impairment by valid methods other than drug testing, the CRC has not provided guidance as to what training or certification methods will meet the statutory requirement for WIREs. This leaves employers that utilize random drug tests in the dark on how they can utilize these tests and still follow the legislative mandates.
Where the CRC does provide clarity is in the realm of federal contracts. The CRC states that if it is determined that any of the provisions set forth in N.J.S.A. 24:6I-52 result in a “provable adverse impact on an employer subject to the requirements of a federal contract,” then the employer may revise their employee prohibitions to be consistent with federal law, rules and regulations.
While the guidance is certainly a step in the direction to addressing employers’ anxieties, more work needs to be done by way of regulations, guidance, training, and education to ensure that workplaces can remain free of impaired workers.
Parker McCay’s Cannabis Law and Labor/Employment Departments regularly advise both public and private employers on how to navigate the ever-changing landscape of state and local cannabis laws. Employers should consult with counsel regarding considerations of documentation of impairment, medical cannabis accommodations, and federal contracts.