The Executive Director for the New Jersey Cannabis Regulatory Commission (“CRC”) issued interim guidance on how to navigate the recreational cannabis landscape in the workplace while the CRC continues to work on creating standards for the Workplace Impairment Recognition Expert certification.
The CRC recognizes that cannabis is difficult to test for and that it can remain in bodily fluids for prolonged periods of time, making it difficult to test for current and active impairment. The CRC thus determined that the “best practice” for employers is “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 or not an individual has used an impairing substance in recent history.”
To support an adverse employment action against an employee for suspected impairment or cannabis use during work hours, the CRC recommends that companies designate an interim staff member to assist in making determinations on cannabis impairment and use. The designated staff member should be sufficiently trained to determine impairment. The staff member should be qualified to complete a form created by the CRC called a “Reasonable Suspicion Observation Report,” which will aid companies in determining physical signs of impairment and observed behaviors. Click here to access the form.
The CRC was careful to note that this form is not Cannabis specific.
The CRC recommends that two supervisors should complete the form and document the behavior. The form should be completed before the drug test results are released, preferably within 24 hours of the observed behavior. The observable indicators are focused on: behavior, odor, appearance and speech.
Employers should consider amending their company handbooks to include this form as an attachment to provide employees notice, and a requirement that the documentation of the employee’s conduct shall be prepared by the observing supervisor(s) within 24 hours of the observed behavior or before the results of the tests are released, whichever is earlier.
Please reach out to Connell Foley if you have any questions on this issue.
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