New Jersey Marijuana Guidance

New Jersey marijuana guidance was released by state officials in September 2022, about 19 months after recreational cannabis became legal in the state.

The guidance from the New Jersey Cannabis Regulatory Commission is aimed at helping employers address marijuana impairment in the workplace.

However, while the commission is charged with creating standards for “workplace impairment recognition expert” certification, the latest guidance does not provide those standards. These are still being crafted.

Instead, the guidance from New Jersey officials regarding marijuana in the workplace focuses on:

• The ability of employers to use established protocols regarding suspicion of impairment
• Adverse employment actions based on observed signs of impairment and a positive test

New Jersey’s marijuana law bars employers from taking adverse employment action based on an employee’s use of marijuana while off duty. But the guidance does provide some information regarding workplace impairment, drug testing and other processes.

As always, it’s worth mentioning that marijuana remains illegal at the federal level.

New Jersey Marijuana Guidance

Firstly, the New Jersey Cannabis Regulatory Commission says a positive drug test — using a scientifically reliable method — is not reason enough alone to take adverse action against an employee.

But a positive drug test combined with signs of workplace impairment may give employers room to act.

Without a formal announcement regarding the workplace impairment recognition expert certification, the commission’s guidance says employers may:

• Designate an interim staff member to assist with making determinations of suspected marijuana use during an employee’s prescribed work hours
  • This employee:
    • Should be sufficiently trained to determine impairment and qualified to complete a reasonable suspicion observation report
    • May be a third-party contractor

Meanwhile, even when using a reasonable suspicion report — which documents the behavior, physical signs of use and other evidence that an employee is reasonably suspected of being under the influence during work hours — employers in New Jersey should establish a standard operating procedure (SOP), according to the guidance. The SOP for completing the report should include supervisory employees, an interim staff member assigned to such instances or a second manager or supervisor.

A positive test, along with evidence in the report, may be enough to take adverse action against an employee who has violated a drug-free workplace policy.

Also, importantly for employers that operate in New Jersey, the commission’s guidance says:

An employer 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.

Lastly, New Jersey’s recreational marijuana law does include exceptions for employers subject to federal contracts, in addition to drug testing mandated by federal law, rules and regulations.

Marijuana and Employment Laws

The difficulties with employment law guidance regarding legalized marijuana in New Jersey underscores a growing challenge in the world of employment law.

The list of challenges outside traditional employment law issues for employers continues to grow:

• Pay transparency laws
• Hair discrimination
• Paid leave contribution rate updates
• Indexed minimum wage rates
• Emergency paid leave laws
• Court intervention to existing laws

And recreational marijuana and employment law protections is no exception.

Recently, California became another state that prohibits employment discrimination based on the use of marijuana while employees are not on duty. California’s marijuana employment discrimination law bars employers from taking adverse action against people in hiring and firing, as well as other terms or conditions of employment, based on the use of weed “off the job and away from the workplace.”

Other states have similar laws, though they are the exception at this point for states that allow adults (21 and older) to use marijuana recreationally.

Between testing, the protection of off-duty use, and more — as we see with New Jersey’s marijuana guidance — recreational cannabis will continue to be an issue for employers now and in the future.

Conclusion

While the New Jersey Cannabis Regulatory Commission has yet to set the standards on the certified workplace impairment recognition expert, the latest guidance helps with interim employees taking a similar role and how employers should proceed.

As always, employers should review their drug testing policies to ensure that their practices are consistent with the new guidance and consult legal counsel for advice.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.