2022Drug Testing

Written By Digital Content Editor Thomas Ahearn

On September 9, 2022, the New Jersey Cannabis Regulatory Commission (NJ-CRC) issued “Guidance on Workplace Impairment” that stated “an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid” found during a marijuana drug test.  

Since a failed marijuana drug test alone is insufficient to support an adverse action, “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,” the guidance states.

Because marijuana can remain in users for a long period of time and there is no perfect test for detecting present impairment, employers should “establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test.” 

In order to demonstrate physical signs sufficient to support an adverse employment action against an employee for suspected marijuana use or impairment during work hours, employers can designate an interim staff member to assist with making determinations of suspected marijuana use during an employee’s prescribed work.

This person should be sufficiently trained to determine impairment and qualified to complete a “Reasonable Suspicion Observation Report” documenting the behavior, physical signs, and evidence that support the employer’s determination that an employee is reasonably suspected of being under the influence during work.

Employers still have the right to maintain a drug free workplace consistent and may require an employee to undergo a drug test upon reasonable suspicion of an employee’s use of marijuana while at work, finding any observable signs of impairment related to the use of marijuana, or following a work-related accident. 

The NJ-CRC guidance is a first step towards formulating and approving standards for “Workplace Impairment Recognition Expert (WIRE)” certifications to be issued to employees or contractors to perform services based on education and training in detecting and identifying an employee’s usage of, or impairment from, marijuana.

“Striking a balance between workplace safety and work performance and adult employees’ right to privacy and to consume cannabis during their off hours is possible,” NJ-CRC Executive Director Jeff Brown stated in a news release about the guidance. “We have been doing that with alcohol without thought.”

Since recreational marijuana was legalized in New Jersey in 2021, some employers in the state have expressed frustration over delays in the creation of WIREs to help determine if an employee is impaired on the job since a person can test positive for marijuana for an extended period of time after the effects have consumption.

According to the National Organization for the Reform of Marijuana Laws (NORML), six states – Nevada, New York, New Jersey, Connecticut, Montana, and Rhode Island – have laws that protect the use of recreational marijuana by workers and 21 states have laws protecting workers who use medical marijuana.

Employment Screening Resources (ESR) is a service offering of ClearStar, a leading Human Resources technology company specializing in background, drug, clinical, and occupational health testing. ClearStar offers drug and clinical testing that is fully integrated with major laboratories. For more information, contact ClearStar.

On September 21, 2022, ClearStar will sponsor a free webinar titled “Continuing the Discussion: A Deep Dive Into 5 More States’ Drug Testing Laws” hosted by Bill Current, President and Founding Partner of the Current Consulting Group, LLC (CCG), and CCG’s Senior Legal Consultant Yvette Farnsworth Baker, Esq.

Earlier in 2022, ClearStar and CCG presented a free webinar that looked into workplace drug testing in the five most populated states: California, New York, Texas, Florida, and Pennsylvania. The second free webinar features the next five most populated states: Illinois, Michigan, Ohio, North Carolina, and Georgia.

This mixture of states featured in the webinar is especially interesting because it includes four states with legal marijuana laws that affect workplace drug testing, two states with voluntary drug testing laws, and one state with an industry-specific drug testing law. To register for the free webinar, click here.

Employment Screening Resources (ESR) – a service offering of ClearStar – does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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