What’s Going on With Cannabis in the Workplace? Very Little.

Posted on Tuesday, February 21st, 2023.

UPDATE: On February 17, 2023, the high court remanded the matter back to the special master for reconsideration under a new legal standard. Little assistance appears to be coming from the Legislature. There are no fewer than nine bills pending that would allow certain classes of safety-sensitive employees to be prohibited from off-duty cannabis use, or that would remove the WIRE requirement for assessing workplace impairment. None of those bills has moved out of committee. It is inevitable that cases of workplace impairment due to legal cannabis will arise. That the state has not yet provided employers with the means for dealing with such workplace impairment is troubling. For now, employers will be left to their own devices in this developing area of law. Obtaining competent legal advice will be critical.

Lawful cannabis consumption in New Jersey is on a roll. There now are twenty recreational cannabis dispensaries in the state. Recreational cannabis sales in the third quarter of 2022 alone totaled $116,572,533. But measures to detect and remedy cannabis impairment in the workplace have not kept pace.

New Jersey’s “Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (CREAMMA) prohibits employers from taking adverse action against employees based solely on drug test results that are positive for cannabis. The positive test result must be accompanied by “a physical evaluation in order to determine {the} employee’s state of impairment,” to be conducted “by an individual with the necessary certification to opine on the employee’s state of impairment … related to the usage of a cannabis item.” The Cannabis Regulatory Commission (CRC) was directed to create a program for the certification of such “Workplace Impairment Recognition Experts” (WIREs). But while cannabis sales explode, the CRC has yet to develop, or even propose, such a program – leaving employers in a quandary.

As an interim measure, on September 7, 2023, the CRC issued a two-page workplace impairment “guidance” for employers, and a sample “reasonable suspicion” report form. One key takeaway is that employers are not expected to wait until the CRC issues its WIRE standards before they can assess current impairment. Any employee or contractor who is “sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report” may perform this function. In the alternative, an employer may utilize a cognitive impairment test; a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment; and/or, an ocular scan.

Although helpful, the “guidance” does not define what it means to be “sufficiently trained to determine impairment.” And as mere “guidance,” the document does not carry the force of law. If the CREAMMA itself requires that experts certified by the CRC determine impairment, how can the CRC allow non-certified persons to perform this function or allow reliance on cognitive impairment measures? Finally, the guidance offers no suggestion where such “sufficiently trained” persons may be found.

One potential source of persons “sufficiently trained to determine impairment” would be current or retired law enforcement officers who had been trained as Drug Recognition Experts (DREs). But the reliability of DREs as impairment experts remains an unsettled issue in New Jersey. A special master appointed by the New Jersey Supreme Court recommended that DREs be deemed scientifically reliable and be allowed to testify as experts as to impairment. But the Supreme Court has yet to decide the issue and may well remand the question for yet further fact- finding.

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