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New Jersey Lays Out Guidance For Cannabis Rules in the Workplace

New Jersey regulators issued new employment guidelines last week for marijuana use by workers as it navigates through legalization.

The guidance from the New Jersey Cannabis Regulatory Commission, handed down on Wednesday, was meant as “a first step towards formulating and approving standards for Workplace Impairment Recognition Expert certifications,” the agency said in the announcement.

The commission said that the guidance, coupled with the Reasonable Suspicion Observation Report Form, “is meant to support employers’ right to create and maintain safe work environments, and to affirm employees’ right to due process.”

“The purpose of this guidance is to clarify and explain the NJ-CRC’s understanding of the existing legal requirements under the governing law,” the commission said in the guidance. “This guidance does not impose any additional requirements that are not included in the law and does not establish additional rights for any person or entity. Please note, however, that adverse employment actions may impact employees’ protected rights under various laws including, but not limited to, state and federal anti-discrimination laws. When incorporating this guidance, employers should ensure compliance with all state and federal employment laws.”

Most notably, the guidance affirms certain rights of employers under the new adult-use cannabis law in New Jersey, while also maintaining an employers’ rights to enforce certain workplace policies.

The Cannabis Regulatory Commission said that “employees cannot be acted against solely due to the presence of cannabis in their body, that but [sic] employers have the right to drug test on reasonable suspicion of impairment.”

“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,” Jeff Brown, the executive director of the New Jersey Cannabis Regulatory Commission, said in a statement on Wednesday. “We have been doing that with alcohol without thought.”

The outlet NJBIZ reports that “an employer cannot use the test alone to take disciplinary action against the employee [and] the employer must combine the results with ‘evidence-based documentation’ of impairment during the employee’s work hours,” and that the “new guidance is intended to be used until the CRC implements WIRE certification standards, which will be used to detect impairment from cannabis or other substances for employees or contractors.”

WIRE, which stands for “Workplace Impairment Recognition Expert standards, are “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 commission said.

“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,” the commission said in its guidance. “However, 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.”

After the 2020 ballot initiative to legalize recreational marijuana in New Jersey, the official launch of adult-use cannabis in New Jersey was in April.

The Cannabis Regulatory Commission reported that in August the state had generated nearly $80 million within the first ten weeks after legalizing marijuana.

“The market is improving. It is performing as we expect with the current number of dispensaries, the spread of locations, and the high prices,” Brown said in a statement at the time. “As more cannabis businesses come online, consumers won’t have to travel as far to make purchases, and prices will fall with increased competition. The market will do even better.”