NJ, at last, offers guidance for managing marijuana in workplaces

TRENTON – State marijuana regulators have finally released guidance, though not yet formal regulations, for how businesses can try to ensure their workers aren’t high while on the job.

Cannabis sales at state-regulated dispensaries became legal in April, but the rules for managing workplace impacts from that change have been delayed despite constant agitation from business organizations.

Even the guidance released Friday is only a first step. Formal regulations on the standards for certifying workplace impairment recognition experts, or WIREs, are required to be adopted, but there’s no word yet when those might be coming.

Jeff Brown, executive director of the Cannabis Regulatory Commission, said the guidance doesn’t create or restrict any statutory rights.

Get our free mobile app

“We make very clear that the new law of the land is that employers cannot, unless they meet a certain carveout for federal contracts, take adverse action against an employee simply based on the presence of cannabis metabolites in their blood,” Brown said.

“But they can develop reasonable suspicion using evidence, using objective means, to determine that somebody is reasonably suspected of being impaired while at work,” he said. “And they can use that with a drug test, with other evidence-based means like a cognitive impairment test, to bolster that case.”

Employers can designate staff members responsible for assisting with determinations related to whether someone is impaired, the guidance says. They should have training.

The state also provides a mechanism to document evidence or proof of impairment to support the use of a drug test to confirm reasonable suspicion. Cognitive impairment testing can also be used to provide evidence. The state’s sample form or an alternative can be used.

Brown said the guidance provides clarity for what employers can do while long-term rules are being developed.

“Certainly, we’ve learned how to live with legal alcohol for quite some time, and employers deal with people on other substances in the workplace,” he said. “This is an evidence-, objective-based manner to do that while we develop those permanent regulations.”

Ray Cantor, deputy chief government affairs officer for the New Jersey Business and Industry Association, welcomed the guidance.

"We are pleased that the CRC has issued guidance which provides a path forward for employers to maintain a drug free workplace,” Cantor said. “And that includes an alternative pathway to handling reasonable suspicion cases without using WIREs.

“We are also pleased that the guidance released by the CRC today has incorporated a number of our suggestions and we look forward to working with the commission on its formal WIRE regulations, while also informing our members of their options as it relates to enforcing workplace safety,” he said.

CRC Commissioner Krista Nash said a change of view is needed regarding the threat posed by marijuana.

“What I find ironic is that in safety-sensitive jobs like construction, there is a heightened look to ensure that we get this WIREs guidance out,” Nash said. “But people are not dying from marijuana. They’re dying from much harder drugs that they go to work every day and use and that they are being prescribed.”

“Ironically, people that are in construction who get hurt, they would benefit from having marijuana prescribed or given to them in lieu of addictive painkillers and opioids,” she said. “Just a takeaway: We need to really focus on the stigma of cannabis and hopefully one day remove that.”