All Employers with NJ Employees
September 9, 2022
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The New Jersey Cannabis Regulatory Commission released guidance for employers trying to comply with the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). CREAMMA requires employers to conduct a “physical evaluation” of an employee and to use a Workplace Impairment Recognition Expert (WIRE) prior to conducting a marijuana drug test. Under CREAMMA, such WIRE individuals must be certified. The new interim guidance is in place until standards for WIRE certifications are created and finalized. Until then, employers may use the following steps to show evidence of impairment that can support an adverse employment decision for suspected cannabis use or impairment.
Designate an individual to make impairment decisions. An interim staff member or third-party contractor can assist with making determinations of suspected cannabis use so long as they are sufficiently trained; however, the guidance is silent on what that training should be.
Reasonable Suspicion Observation Report. An employer is recommended to use documentation to describe the behavior, physical signs, and evidence which lead to the determination of reasonable suspicion. The state released a template Reasonable Suspicion Observed Behavior Report which the individual making the determination should complete. Employers are free to create their own documentation or reports.
Cognitive impairment tests. Employers may use cognitive impairment tests that are scientifically valid, objective, consistently repeatable, standardized automated tests of an employee’s impairment, and/or an ocular scan, as physical signs of evidence to establish reasonable suspicion.
Evidence of Impairment. The guidance makes clear that a drug test showing the presence of cannabinoid metabolites in the employee’s bodily fluid alone is not enough to support an adverse action. Documentation including evidence of physical signs or other evidence of impairment during work hours must be available to support an adverse employment action.
- Review the guidance here.
- Review and revise drug testing and drug use policies.
- Review template or create report to document reasonable suspicion and physical signs of impairment.
- Have appropriate personnel trained on identifying signs and behaviors of cannabis impairment.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase