New Jersey Issues Guidance Stating Employees Shall Not Be Subject to Adverse Action Solely Due to Presence of Marijuana in Their Body

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New Jersey Issues Guidance Stating Employees Shall Not Be Subject to Adverse Action Solely Due to Presence of Marijuana in Their Body

The New Jersey Cannabis Regulatory Commission (NJ-CRC) has issued “Guidance on Workplace Impairment” for employers in the Garden State which explained that “an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid” found during a marijuana drug test.

Issued on September 9, 2022, the guidance stated that a failed marijuana drug test alone is insufficient to support an adverse action but that “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.”

Since marijuana can remain in users long after usage, the NJ-CRC – which establishes and enforces rules and regulations governing cannabis in the state – suggested that employers should “establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test.”

Employers can designate a staff member to assist with making determinations of suspected marijuana use during work who is sufficiently trained to determine impairment and qualified to complete a “Reasonable Suspicion Observation Report” documenting the behavior, physical signs, and evidence supporting suspected marijuana use or impairment during work.

Employers still have the right to maintain a drug free workplace and may require an employee to undergo a drug test upon reasonable suspicion of an employee’s use of marijuana while at work, after finding any observable signs of impairment related to the use of marijuana, or following a work-related accident. The guidance from the NJ-CRC is available here.

The guidance is a first step toward formulating and approving standards for “Workplace Impairment Recognition Expert (WIRE)” certifications to be issued to employees or contractors to perform services based on education and training in detecting and identifying an employee’s usage of, or impairment from, marijuana. New Jersey legalized recreational marijuana use in 2021.

“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,” NJ-CRC Executive Director Jeff Brown stated in a news story about the guidance posted on the official State of New Jersey website. “We have been doing that with alcohol without thought.”

ClearStar is a leading Human Resources technology company specializing in background checks, drug tests, clinical testing, and occupational health screening. ClearStar offers drug testing that is fully integrated with major laboratories with a single candidate invite for all services via email or text. For more information about drug testing, contact ClearStar.

On September 21, 2022, ClearStar will sponsor a free webinar titled “Continuing the Discussion: A Deep Dive Into 5 More States’ Drug Testing Laws” hosted by Bill Current, President and Founding Partner of the Current Consulting Group, LLC (CCG), and CCG Senior Legal Consultant Yvette Farnsworth Baker, Esq. To register for the free webinar, click here.

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    Thomas Ahearn - Digital Content Editor

    Thomas Ahearn is a Digital Content Editor at ClearStar, a leading Human Resources (HR) technology company specializing in background, drug, and occupational health screening. He writes about a variety of topics in the background screening industry including "Ban the Box," class action lawsuits, credit reports, criminal records, drug testing, the Equal Employment Opportunity Commission (EEOC), the Fair Credit Reporting Act (FCRA), HR technology, identity theft and fraud, privacy, social media background checks, and workplace violence.

    At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.

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