September 13, 2022
On Friday, September 9, 2022, the New Jersey Cannabis Regulatory Commission (NJ-CRC) issued temporary guidance for identifying and taking action against workplace impairment, specifically from cannabis.
As stated in the guidance, the NJ-CRC "is charged with prescribing standards for a Workplace Impairment Recognition Expert ("WIRE") certification, to be issued to full- or part-time employees, or others contracted to perform services on behalf of an employer, based on education and training in 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."
Because the NJ-CRC has not yet prescribed such WIRE certification standards, this document is intended to serve as guidance for organizations in identifying and taking action against workplace impairment.
The NJ-CRC has identified a best practice of employers establishing evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test to verify whether or not an individual has used an impairing substance in recent history.
Again, as stated in the guidance, "Pursuant to N.J.S.A. 24:6I-52a(1), and in accordance with all state and federal laws, an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee's bodily fluid as a result of engaging in conduct permitted under N.J.S.A. 24:6I-31 et al . . . A scientifically reliable objective testing method that indicates the presence of cannabinoid metabolites in the employee's bodily fluid alone is insufficient to support an adverse employment action. However, such a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee's prescribed work hours may be sufficient to support an adverse employment action."
Click here to access the NJ-CRC's guidance on workplace impairment and for more information.