On September 9, 2022, the New Jersey Cannabis Regulatory Commission on Workplace Impairment published Guidance regarding whether employers may fire employees for smoking or otherwise ingesting marijuana.
For those not paying attention, on February 22, 2021, Governor Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”) which legalized recreational marijuana use for New Jersey adults aged 21 and older.
CREAMMA (not my favorite acronym) imposes certain obligations on New Jersey employers regarding marijuana in the workplace as it relates to employee termination and disciplinary measures.
CREAMMA’s employment-related provisions were “effective” immediately. However, they were not “operative” until the New Jersey Cannabis Regulatory Commission set “standards” for “detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other “intoxicating substance”, and for assisting in the investigation of workplace accidents.”
That’s where we are now.
According to the Guidance, the NJ Cannabis Regulatory Commission is still formulating standards that will apply to Workplace Impairment Recognition Experts (“WIRE”) — those persons who are to be trained to detect an employee’s use or impairment due to cannabis or “other intoxicating substance.” In the interim, however, the Commission stated that employers may:
“Continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, like a drug test, to determine that an individual violated a drug-free workplace policy.”
Pursuant to the Cannabis Regulatory Commission’s Guidance, a scientifically reliable objective testing method that indicates the presence of metabolized cannabinoids is not enough alone. However, a positive test combined with evidence-based documentation of impairment may be sufficient to support an employee’s termination or other adverse employment action.
The Guidance also contains exceptions for employers with federal contacts and/or who may require mandatory drug testing.
Contact Lauren Topelsohn to learn more about how to establish enforceable “drug free” policies at your company, and how to protect your business under this new regulation.