In February 2021, New Jersey governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), which, among other things, prohibited employers from discriminating against employees solely for their status as marijuana users (whether for recreation or medicinal purposes). However, the law still permitted employers to maintain a drug-free workplace, including prohibiting employees from being under the influence of marijuana in the workplace. Because there is no test that can currently determine whether an individual is actually under the influence of marijuana (tests can identify the presence of cannabinoid metabolites, which can remain in an individual’s body for a month or more), this created a tension in the law: how does an employer determine that an employee is actually under the influence of the drug at work (rather than has the drug in his or her system from prior usage)?
CREAMMA took the first step in addressing that question by requiring that, before an employer can terminate an employee who tests positive for marijuana, it must also obtain the opinion of a Certified Workplace Impairment Recognition Expert (WIRE) to determine whether the employee was actually impaired at work. Only when a WIRE makes such a conclusion, coupled with a positive test, could an employer terminate an employee for being under the influence of the drug at work.
However, when CREAMMA was passed, there were no WIREs in New Jersey and no process for individuals to become WIREs. On August 19, 2021, the New Jersey Cannabis Regulatory Commission published its initial guidance addressing this issue. Confusingly, that guidance only stated that employers were not required to have employees under a physical evaluation by a WIRE until the Commission develops the standards for a WIRE certification, but reiterated that employers could not terminate an employee solely for testing positive for marijuana. This was not particularly useful for employers.
This September, the New Jersey Cannabis Regulatory Commission published new guidance on this issue. While this guidance does not provide a certification process for WIREs, it does state that CREAMMA “does not impede the ability of employers to continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, like a drug test, to make the determination that an individual violated a drug-free workplace policy.” Accordingly, a scientifically reliable objective testing method for the presence of cannabinoid metabolites, coupled with evidence of physical signs of use and/or impairment may now be sufficient to terminate an employee for marijuana usage at work.
Employers must still tread carefully. If they have reasonable suspicion that an employee is under the influence of marijuana at work, they should immediately document the employee’s behavior. Best practices would include implementing a reasonable suspicion observation report form, and having an employee specifically trained to identify behavior indicative of marijuana usage at work.
If you have any questions about this development or how it impacts your business, please contact: