Workplace Cannabis Guidance Burdens Employers

Governor Phil Murphy signed three cannabis reform bills into law in February 2021. Since then, complications have mushroomed, including the treatment of juveniles engaging in illegal use of the drug. The latest from the Cannabis Regulatory Commission is guidance on workplace impairment. 
Six months after the state approved the sale of recreational cannabis, the commission has graced us with “interim” guidance on dealing with employees who may be impaired at work due to marijuana use. The September 9 guidance reaffirms that an employee’s use of cannabis products “off-duty” cannot be a reason for any adverse employment action. The protections for use are much more explicit than the guidance for abuse, even when impairment at work may put an employer or other staff at risk.
Yes, employers can require a drug test and take adverse action against workers who are under the influence at work. But, and it is a big but, certain protocols need to be followed to ensure compliance with the law. Drug testing must be based on “reasonable suspicion” or observed signs of impairment at work. In order to meet that requirement, employers will need to rely on a “Workplace Impairment Recognition Expert,” increasingly know as a WIRE, prior to testing.
The 2021 law, the Cannabis Regulatory Enforcement Assistance & Marketplace Modernization Act (CREAMMA) contained requirements for additions to internal work cannabis testing practices. Over one year later we have “interim” guidance that will be difficult to implement. We are still awaiting final guidance which will establish the requirements for WIRE training and designation. 
As with everything having to do with New Jersey’s legalization of cannabis, the state moves more swiftly to protect the rights of cannabis users than it does to deal with the fallout from its new practices. No thought was given to cannabis use by police and other emergency responders until well after the fact. The link between legalization of adult use and the juvenile reform legislation and directives have left police with few options for controlling illegal underage use. The state has even managed to “protect” underage use of alcohol from police scrutiny.
Now employers, more than six months after the legal sale of cannabis was allowed, are confronted with complex, interim guidelines for dealing with workplace use or impairment. That guidance describes the “best practice” for employers is to “establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion” that warrant requiring a drug test for recent use. The commission has even provided a form to record the observations called The Reasonable Suspicion Observed Behavior Report. 
This form would be filled in by an “interim WIRE” acting under the “interim guidance.” What can possibly go wrong here?  
The interim WIRE could be an employee with special training, but the guidance is silent on what that training would have to be. It could be a third-party contractor but the guidance provides no example of such a contractor. The observations could then be recorded in the form or template provided by the commission. 
The interim guidance does contain an exception to CREAMMA protections for cannabis use for employers who are federal contractors or federal grantees. This is because of the huge gap between state and federal law regarding cannabis use and the requirements of the federal Drug-Free Workplace Act of 1988. 
Most glaring among the exceptions that are not part of the interim guidance. There is no exception for workers in safety-sensitive positions. Repeat, the interim guidance does not address an exception for workers in such positions. In contrast to most other states that have legalized cannabis use, New Jersey still protects safety-sensitive employees from cannabis use or any adverse employment action outside the protocols outlined. 
This is going to be the lawyer full employment act. Who cannot see litigation over WIRE training and practices from employees who say they were improperly deemed impaired? Likewise with heavy implications for employers and insurers with respect to safety-sensitive positions, challenges are almost guaranteed. 
This interim guidance will govern until final guidelines are issued. The state will continue to lumber along. We will ignore juvenile illegal use in the name of reform. We will remain one of the only states to lack a policy with respect to safety-sensitive workers. We will continue to require complex protocols with WIRE experts, all of which add costs to the employer. We are almost guaranteed legal challenges that will grow as the availability of legal cannabis spreads across the state. 
The Cannabis Regulatory Commission and the legislature must address the glaring areas of concern regarding workplace use or impairment. We don’t have another year to give while we wait for the next round of guidance. 
It is time for the state’s legislative and executive branches to learn they cannot just pass and sign laws assuming all the complex details will be tended to later.