New Jersey has issued guidance for workplaces to support employers’ right to create and maintain safe work environments, as well as affirm employees’ right to due process.
According to the guidance and “Reasonable Suspicion Observation Report Form” by the New Jersey Cannabis Regulatory Commission, employees cannot be acted against solely due to the presence of cannabis in their body, but 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,” said Jeff Brown, NJ-CRC’s executive director. “We have been doing that with alcohol without thought.”
Cannabis can remain in the bodily fluids of users for a long period of time and although tests are improving in accuracy there is no perfect test for detecting present cannabis impairment, according to the commission.
In the absence of accurate tests, best practice has been for employers to establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test to verify whether an individual has used an impairing substance in recent history.
New Jersey began sales of recreational marijuana for those 21 and older in April. The state already allowed cannabis for medical purposes.
The guidelines are intended as a first step toward eventual regulations for certification standards for workplace impairment recognition experts.
But employers do not need to wait for certification standards and can on their own use established protocols to maintain a drug free workplace policy. These protocols are federally mandated for some industries.
Employers may require an employee to undergo a drug test upon “reasonable suspicion” of cannabis usage while engaged in the performance of work responsibilities, or upon finding any observable signs of impairment related to usage of cannabis. An employer may also conduct a random drug test program or test as part of a work-related accident investigation.
“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 guidance states. “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.”
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