Cannabis Blog

The New Jersey Cannabis Regulatory Commission (“NJ-CRC”) recently released much anticipated workplace guidance for how employers can and should handle workplace impairment.

The guidance released by the NJ-CRC applies to all employers, whether operating in the cannabis industry or otherwise. The guidance first and foremost reiterates that an employee cannot be subject to any adverse employment actions due to a positive drug test for cannabis alone under New Jersey law.   For an employer to take an adverse employment action against an employee, a positive drug test AND “evidence based documentation” that the employee is impaired during working hours is needed.

The long anticipated guidance does not create the scheme for certifying workplace impairment recognition experts as many had hoped. However, it does note that employers can still use reasonable suspicion testing with “evidence based documentation” in order to show an employee is intoxicated on the job and ultimately to take adverse actions against an employee.

The question becomes, what is “evidence based documentation” that an employee is impaired, and who can provide it? The NJ-CRC notes that, employers can use “established protocols” for developing reasonable suspicion that an employee is impaired on the job. This means that employers can designate an interim staff member or third-party contractor to help determine that an employee may be impaired on the job. The interim staff member or third-party contractor would also be responsible for filling out the appropriate documentation.

Signs of employee impairment that can be documented include behavioral indicators such as slurred speech or impaired judgment, physical manifestations which include flushed skin or bloodshot eyes, or other evidence such as odor or diminished performance. The NJ-CRC drafted a sample form that can be used to document impairment which can be found here.

Additionally, if an employer chooses, they can use a cognitive impairment test or eye scans to help determine if an employee is impaired on the job. Once documentation showing reasonable suspicion an employee is impaired on the job is combined with a positive drug screen, an employer can take adverse employment actions against an employee – including firing.

Therefore, the guidance recommends that employers first establish and document reasonable suspicion that an employee is impaired on the job and then drug test the employee to verify that the employee has used the intoxicating substance.

Overall, this guidance, while offering broad protections for employee off-the-clock cannabis usage, empowers employers to fire employees they believe show signs of impairment on the clock. It further gives employers a wide range of tools to document said impairment.

These protections do not apply to everyone, however. If an employer has federal contracts, it still may take adverse employment actions against an employee based on a positive drug test alone.

If you have any questions about this new guidance, please contact a member of the firm’s Cannabis Law Group.

It is official, Governor Murphy signed three bills that together legalize cannabis for adults 21 years of age and older, making New Jersey the 13th state to legalize cannabis. On Monday, February 22, 2021, Governor Murphy signed the bills in to law, after both the Senate and Assembly held voting to pass a third bill establishing civil penalties for those under 21 caught with cannabis.

Here are New Jersey’s new cannabis laws, effective immediately:

1. New Jersey adults 21 years of age and older may legally purchase and possess up to one ounce of cannabis, although cannabis consumers will not have legal means to purchase it yet. Under A21/S21 a New Jersey Cannabis Regulatory Commission will be established to develop regulations to govern the medical and adult-use industries and oversee the applications for licensing of cannabis businesses. The bill directs the CRC to promote diversity and inclusion in business ownership and contains employment protections for people who engage in lawful behavior with respect to cannabis. The Cannabis Regulatory Commission still must be fully seated to oversee the cannabis industry, which has six months to set up its rules and regulations before it seeks new licensees for businesses. The bill provides for the Legislature to reinvest cannabis revenues in designated “impact zones” and all retail sales will be subject to state sales tax and seventy percent of that revenue will be given to these “impact zones.”
2. The second law signed by Governor Murphy, A1897 reduces criminal and civil penalties for those found with larger quantities of cannabis in their possession (distribution of more than one ounce but less than five pounds), as well as provides remedies for people currently fighting certain cannabis charges, including a pathway to vacate active sentences for particular offenses committed before enactment of the enabling legislation. The bill prevents certain unlawful low-level distribution and possession offenses from being used in pretrial release, probation and parole decisions, and provides certain protections against discrimination in employment, housing and places of public accommodation.
3. A third law signed by Governor Murphy, A5342/S3454 also refines penalties for cannabis possession and consumption for those under 21 years of age. This bill requires a series of written warnings, rather than criminal penalties or fines, for those under 21 years of age found with cannabis. Third-time offenders can receive community service. The law also restricts police from conducting searches of those under 21 years of age based solely on the odor of cannabis.