The New Jersey Cannabis Regulatory Commission recently issued interim guidance for employers who suspect that an employee is impaired at work.
As mentioned in a prior alert, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) calls for employers to have, on staff, trained workplace impairment recognition "experts" to identify when there is a reasonable suspicion that an employee is under the influence of cannabis for drug testing and workplace investigation purposes. The interim guidance is designed to be used until the Commission finalizes the standards used to certify such experts.
The good news for employers is that they are not required to use an expert until the regulations on those standards are published, the timing of which is uncertain. Instead, the interim guidance advises that an employer “may” designate an employee or engage a third-party contractor who is “sufficiently trained” to determine whether an employee is impaired. Much like the standards for the experts, the phrase “sufficiently trained” is not defined. The designee should document the signs of suspected impairment using a “Reasonable Suspicion Observed Behavior Report” form, of which the Commission provided a sample.
Notably, the report is not limited to suspicion of cannabis use and can be utilized when an employer suspects any impairment. The employer is also permitted to use its own form, but the key is to establish evidence-based protocols to document the observed behavior. The guidance suggests having two observers complete the report, which can help support an adverse employment action. One of the observers completing the report should be a manager or supervisor, and the other should be the employee or third-party contractor the employer has designated and sufficiently trained. Employers should develop and maintain “Standard Operating Procedures” for the report completion process.
The interim guidance makes clear that employers cannot take adverse employment action against an employee “solely due to the presence of cannabinoid metabolites” in their system. But a positive result from a scientifically reliable drug test and documentary support of evidence-based signs of impairment would support such an action. That makes the report a significant tool employers can use when taking an adverse employment action.
While the Commission continues to develop the regulations concerning the standards applicable to experts, employers should use the interim guidance to further enhance their reasonable suspicion procedures.
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