Update Applicable to:
All employers in the state of New Jersey.

What happened?
On September 9, 2022, the New Jersey Cannabis Regulatory Commission (NJ-CRC) issued interim guidance to employers regarding the use of a Workplace Impairment Recognition Expert (WIRE) to “detect and identify an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance.”

What are the details?

On February 22, 2021, Governor Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act (CREAMMA).

CREAMMA requires an employer, before conducting most marijuana drug testing, to conduct a “physical evaluation” of an employee and to use a so-called WIRE-certified individual to decide whether the employee is impaired by marijuana when conducting such testing.

CREAMMA requires the NJ-CRC to prescribe “standards in regulation for a [WIRE] certification, to be issued to full- or part-time employees or others contracted to perform services on behalf of an employer, based on education and training in detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance, and for assisting in the investigation of workplace accidents.”

The NJ-CRC’s newly released interim guidance states that it “is intended to serve as guidance until the NJ-CRC formulates and approves standards for WIRE certifications.”

Proving Impairment or Intoxication

The interim guidance provides that for an employer to demonstrate physical signs or other evidence of impairment sufficient to support an adverse employment action against an employee for suspected cannabis use or impairment during the employee’s prescribed work hours, the employer may—but is not required to—follow several steps.

1. Designation of an Individual to Make Impairment Decisions
2. Use of Reasonable Suspicion Observation Report Forms
3. Use of Cognitive Impairment Tests
4. Evidence-Based Documentation/Physical Signs of Impairment

In addition to the released interim guidance, the NJ-CRC also released a template “Reasonable Suspicion Observed Behavior Report” form that employers may, but are not required to, use in connection with workplace drug testing.

For more information, please see the links below:

Interim Guidance

CREAMMA

New Jersey Cannabis Regulatory Commission

Reasonable Suspicion Observed Behavior Report

Article 1 – Article 2 – Article 3

What do employers need to do?
Employers should review the links above, explore options for training designated staff to conduct impairment assessments and complete the Reasonable Suspicion Observation Reports, and examine their hiring practices and drug testing procedures to ensure they comply with CREAMMA and the NJ-CRC’s guidance.

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