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The New Jersey Cannabis Regulatory Commission recently issued interim guidance on the workplace drug testing provisions of the state’s recreational cannabis law meant to act as a placeholder until regulations on the standards for Workplace Impairment Recognition Expert certification are published.
The guidance allows employers to continue to use existing policies/processes for drug testing, reaffirms that the use of a Workplace Impairment Recognition Expert (WIRE) is not yet required, and offers suggestions on how to create evidence-based documentation of physical signs or other evidence of impairment during work hours, including a sample Reasonable Suspicion Observation Report.
The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA), which went into law in February 2021, requires that drug tests include “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and a “physical evaluation,” which must be conducted by a “Workplace Impairment Recognition Expert.” The law requires the New Jersey Cannabis Regulatory Commission (NJCRC) to issue regulations establishing certification standards for WIREs, but none have been issued to date.
On September 21, 2021, the NJCRC issued initial regulations to implement NJCREAMMA, but those regulations largely left the employment-related provisions of the law unaddressed. Those regulations did, however, provide that a “physical evaluation” of an employee was not required for a workplace drug test until the NJCRC develops standards for WIRE certification.
Nearly a year later, on September 9, 2022, the NJCRC issued its “Guidance on ‘Workplace Impairment’” (Guidance). The Guidance advises that—at least for now—employers need not use a WIRE to conduct a physical evaluation to determine suspected cannabis use or impairment during work hours (because, of course, the WIRE certification standards have yet to be published).
The key takeaways from the Guidance include the following.
New Jersey employers should consider taking the following steps:
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
 See our prior LawFlash addressing this WIRE requirement.
 See N.J.A.C § 17:30-2.1(e) (“Notwithstanding the provisions of N.J.S.A. 24:6I-52, until such time that the Commission, in consultation with the Police Training Commission established pursuant to N.J.S.A. 52:17B-70, develops standards for a Workplace Impairment Recognition Expert certification, no physical evaluation of an employee being drug tested in accordance with N.J.S.A. 24:6I-52 shall be required.”).
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