In the wake of the wave of legalization of medicinal and recreational marijuana use, employers question how to balance these new employee freedoms with their duty to create and maintain safe work environments. On one hand, employers are warned that “employees cannot be acted against solely due to the presence of cannabis in their body,” while on the other hand they are told they have the “right to drug test on the reasonable suspicion of impairment.” However, particularly because cannabis can remain in bodily fluid for prolonged periods of time, even with these “rights,” employers ask: what good is the right to drug test if the tests are unable to prove present cannabis impairment; and, how do we detect impairment considering insufficient testing?
Just last week, regulators in New Jersey issued guidance to help employers answer these questions. The New Jersey Cannabis Regulatory Commission has been charged with prescribing standards for Workplace Impairment Recognition Experts (WIRE) in the workplace. Those standards will be used to issue certifications to full or part time employees, or contractors, indicating they are qualified to detect and identify an employee’s usage of, or impairments from, a cannabis item or other intoxicating substance, and for assisting in the investigation of workplace accidents. These guidelines, issued on September 9, 2022, are intended to be “a first step” towards formulating and approving these standards.
The Guidance confirms for New Jersey employers that a positive THC drug test alone is insufficient: “A scientifically reliable objective testing method that indicates the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action.” However, the Guidance goes on to state, “such a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action.”
So, how do employers obtain “evidence-based documentation of physical signs or other evidence of impairment?” According to the Guidance, employers may:
Designate an interim staff member to assist with making determinations of suspected cannabis use during an employee’s prescribed work hours. This employee:
Should be sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report; and
May be (but does not have to be) a third-party contractor.
Use a uniform “Reasonable Suspicion” Observation Report that documents the behavior, physical signs and evidence that support the employer’s determination that an employee is reasonably suspected of being under the influence during his or her prescribed work hours. The employer should establish a Standard Operating Procedure for completing such a report that includes:
The employee’s manager or supervisor or an employee at the manager or supervisor level; and
An interim staff member that has been designated to assist with determining whether an employee is reasonably suspected during his or her prescribed work hours, or a second manager or supervisor.
Use a cognitive impairment test, a scientifically valid, objective, consistently repeatable automated test of an employee’s impairment, and/or an ocular scan, as physical signs, or evidence to establish reasonable suspicion of cannabis use or impairment at work.
The Guidance, which is no longer than two pages in length, does not specify what renders an employee or contractor “sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report.” Therefore, we would recommend employers contract with qualified third-party safety consultants who specialize in detecting impairment to train their designated employees. Training is critical to avoid complaints of race, gender, and disability-based discrimination claims, among others.
Moreover, while the Guidance does not require its use, and allows employers to continue to use their own forms if they have them, we recommend employers use the sample Reasonable Suspicion Observation Report provided by the Commission. Workplace Impairment Guidance Sample Form.pdf (nj.gov). Use of this form, which is not limited to suspicion of cannabis use or impairment, will likely avoid unnecessary scrutiny by employees as to sufficiency or bias.
Lastly, the Guidance provides no information on what would be a sufficient “cognitive impairment test,” which also meets the requirements of being standardized, automated, scientifically valid, objective and consistently repeatable. Until further information is provided, we recommend employers avoid relying on such tests to determine impairment and, instead, depend upon properly trained employees per the guidelines.
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