Worried your employees will use cannabis at work now that it’s legal in NJ? 

The New Jersey Cannabis Regulatory Commission has issued recommendations on drug testing and discipline for cannabis use in the workplace. 

In New Jersey, an employee who uses cannabis outside of their workplace may not be disciplined at work, unless they report to work impaired or work for a federal contractor. Since traces of cannabis can linger in an individual’s system long after its use, employers also may not discipline an employee for merely testing positive for cannabis. So how do you determine if one of your employees is impaired? 

Here are five things employers need to know about the new guidance on this issue. 

1. You must document behaviors or physical signs of impairment at work.  

To have reasonable suspicion to drug test an employee for cannabis, either an employee or a vendor trained on cannabis impairment, PLUS the suspected employee’s supervisor, must document any signs of impairment at work.  

Only THEN may the employer legally drug test the employee due to a reasonable suspicion that the employee is impaired at work. If the employee fails the test, the employer can discipline them. This discipline may include termination of employment.  

2. Use the Reasonable Observation Report. 

The Cannabis Regulatory Commission recommends employers use a template called the Reasonable Suspicion Observation Report to record evidence that an employee may be impaired at work. Note that this report is not specific or limited to impairment from cannabis.  

3. Random and incident-related drug testing of employees is still permitted.

Employers still may require random employee drug testing or drug testing after an incident you are investigating.  

4. You do not have to violate federal contracts

Employers are not required to violate federal contracts to comply with New Jersey’s cannabis law. Since cannabis is still illegal under federal law, federal contractors may abide by their contracts with respect to their employees’ cannabis use.  

5. The new guidance is only temporary

The new guidance is only a temporary gap fill until the Commission issues standards on the required certification process for Workplace Impairment Recognition Experts, also known as WIRES.  

Although employees in New Jersey have the right to use cannabis outside of work, employers also have the right to maintain a drug-free workplace.

These issues are complex, and the law is constantly changing.  If you need help rewriting or implementing your drug and alcohol policies, give us a call at 973.787.8442 or schedule a Strategy Session today.

Please keep in mind that this is general information, not legal advice.  And the law may change at any time.  

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