Like saying, “It depends,” you can count on a lawyer blogging about cannabis and employment law to drop a marijuana pun in the title of the post.
Legal recreational cannabis and its impact at work.
In early 2021, New Jersey legalized recreational marijuana for adults 21 and older when Governor Phil Murphy signed “The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” better known as the CREAMM Act.
(But definitely not as popular as Wu-Tang Clan’s 1994 hit C.R.E.A.M. “Cash Rules Everything Around Me.”)
The CREAMM Act contains some employment law provisions which prevent adverse employment actions against individuals who use cannabis items.
But the CREAMM Act didn’t greenlight employee use of marijuana at work. (Sorry, Cypress Hill.) Indeed, it allows employers to drug test in certain situations, like reasonable suspicion of being under the influence at work or following a work-related accident. An employer can also drug test randomly or as part of a pre-employment screening or regular screening of current employees to determine use during an employee’s prescribed work hours.
But here’s the thing.
The CREAMM Act requires that the drug test include scientifically reliable objective testing methods and procedures, such as testing blood, urine, or saliva, and a physical evaluation to determine an employee’s state of impairment. Plus, an individual with the necessary certifications, known as a “Workplace Impairment Recognition Expert” (WIRE), must conduct the physical evaluation.
So how does one become a trained WIRE? Alternatively, is it possible to drug test without a WIRE?
New guidance is here.
According to guidance that New Jersey issued last week, it appears as though employers can conduct reasonable suspicion drug tests without a WIRE.
Designate an interim staff member to assist with determining suspected cannabis use during an employee’s prescribed work hours. This individual, either an employee or contractor, should be “sufficiently trained to determine impairment” and “qualified” to complete something called a “Reasonable Suspicion Observation Report.”
(If employers already utilize a form of Reasonable Suspicion Observation Report to determine when drug testing is necessary, they may continue to do so.)
The Report 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. Plus, the employer should establish a Standard Operating Procedure for completing such a report. The SOP must include the employee’s manager or supervisor or an employee at the manager or supervisor level and an interim staff member designated to help determine whether an employee is reasonably suspected of being impaired during an employee’s prescribed work hours, or a second manager or supervisor.
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.
But questions remain.
While New Jersey has provided some help to conduct reasonable suspicion testing, there are still many open questions.
- How does one become “sufficiently trained to determine impairment” and “qualified” to complete the Report?
- What will the State accept as an approved cognitive impairment test?
- What is considered a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment?
- What standards apply to random and post-accident drug testing?
Employers operating under federal contracts can follow federally-mandated protocols for determining reasonable suspicion and drug testing. But the rest of you — especially the risk-averse ones — may opt to take a wait-and-see approach.