It’s been over a year since New Jersey Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, but the law’s impact on employees in drug-free workplaces remains unclear. Though people over the age of 21 are within their legal rights to use marijuana outside of the workplace, many are finding themselves subjected to indiscriminate drug testing by their drug-free employers, and some have been fired without any indication that their at-home use has had actually impaired their work performance. To address this issue, the New Jersey Cannabis Regulatory Commission has issued new guidance making it clear that the presence of cannabis in an employee’s system must be paired with significant, documented evidence of impairment in order for adverse job actions to be taken.

It is expected that the regulatory commission will eventually offer specifics for establishing dedicated, certified Workplace Impairment Recognition Experts, or WIREs, who will be trained to objectively assess worker marijuana impairment, but the recent guidance offers some interim protections. While the commission has confirmed that employers are within their legal rights to enforce drug-free workplace policies, those rights are restricted to prohibiting the use of marijuana in the workplace and preventing workers from being impaired by marijuana while on the job. Off-duty use that does not impair work product or performance is not permitted as grounds for firing, demotion, or any other adverse action, and if such actions are taken around the results of a drug test, they must also be supported by objective evidence of impairment.

The interim guidance that the commission has issued indicates that if employers suspect an employee is either impaired by out-of-work marijuana use or is engaging in workplace use of marijuana, they should follow evidence-based protocols that document behavioral and/or physical symptoms prior to conducting drug tests. The commission stresses that conducting a drug test alone is insufficient proof for taking adverse employment actions because it can take an extended period for cannabis to clear an employee’s system, and though the substance may still be chemically present, that does not necessarily mean that it is impacting performance.

The suggested evidence-based protocols start with completing a “Reasonable Suspicion Observed Behavior Report” which provides a menu of causes for reasonable suspicion – including physical signs or symptoms and behavioral indicators – as well as providing space for descriptions of actions or behaviors observed, indications of drug or alcohol use observed in case of a workplace accident, and details of employee interviews regarding the observed suspect behaviors.

The commission supports each workplace selecting a staff member who will be dedicated to reviewing this initial report and assessing instances where drug use is suspected. This second individual would be responsible for conducting scientifically valid, objective, consistently repeatable, standardized automated tests designed to measure impairment, as well as their own Reasonable Suspicion Observation Report.

We are awaiting the issuance of permanent standards for WIRE certifications, but the guidance that has been issued provides a reasonable framework and makes clear that employees cannot be penalized by their drug-free workplace simply for exercising their right to use cannabis outside of the office. If you believe that you are being targeted or have wrongfully been the subject of an adverse work action based on a drug test, our employment discrimination attorneys can help. Contact us today for more information.