Months after legal recreational marijuana sales began in the state, New Jersey has issued preliminary guidance for employers over possible worker impairment.
The New Jersey Cannabis Regulatory Commission’s guidance, released Friday, underscores that employees can’t be acted against solely due to the presence of cannabis in their system, but it does give employers recourse if they reasonably suspect workers are impaired.
“Striking a balance between workplace safety and work performance and adult employees’ right to privacy and to consume cannabis during their off hours is possible,” NJ-CRC Executive Director Jeff Brown said in a written statement. “We have been doing that with alcohol without thought.”
The guidance is intended to act as a placeholder until the NJ-CRC “formulates and approves” guidance for certifying workplace impairment recognition experts (WIREs). These WIREs would be trained on how to identify physical and behavioral signs of intoxication, and they would help investigate workplace accidents.
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In the interim, employers can require employees to take a drug test, but only if they reasonably suspect a worker is impaired or actively using cannabis on the job. However, a drug test showing the presence of cannabis in an employee’s system would in itself not be enough to “support an adverse employment action.” Instead, the NJ-CRC’s guidance states, such action would only be justified if an employee also shows physical or other signs of impairment.
To determine impairment, employees must have an interim staff member or third-party contractor fill out a “Reasonable Suspicion Observation Report,” which includes signs of possible impairment.
Not everyone is sold on the interim guidance, though. Republican state Sen. Anthony Bucco said the guidance “fell short” of the specifics that employers need to keep workers safe.
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“The longer this confusion goes on, the likelihood of litigation due to enforcement increases,” Bucco said in a written statement. “Employers need something definitive – a final decision about how companies should proceed and what they can and cannot do to keep the workforce safe without violating workers’ rights to privacy.”
