NJ State PBA Legal Corner
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
As a result of the recent passage of the recreational cannabis law known as the New Jersey Cannabis Regulatory, Enforcement Assistance, Marketplace Modernization Act (CREAMMA), many unresolved legal issues have arisen which have yet to be clarified. Among them is the question of how to distinguish between lawful usage at home and impairment at work or while driving. This is a particularly difficult issue with marijuana because cannabinoids can remain in a system up to 30 days after use.
As a result, employers have been seeking a reliable testing system, particularly for employees in safety-sensitive positions. While there are provisions in the cannabis statute authorizing the use of Workplace Impairment Recognition Experts (WIRE) to make such determinations, the
Cannabis Regulatory Commission (CRC) has yet to promulgate regulations regarding the necessary training and experience needed to be WIRE qualified to identify persons who are actually high or impaired at work or while driving. This has created a great deal of uncertainty about whether employers can discipline employees who may have tested positive for marijuana
but where there is no evidence of impairment or that the employee was high at work.
Some clarification may be on the horizon. A special master appointed by the New Jersey Supreme Court has issued a recommendation in a related context, which will undoubtedly impact the
CRC’s preparation of regulations regarding such drug recognition experts. In 2019, the New Jersey Supreme Court appointed a retired appellate division judge as a special master to determine the admissibility of testimony by Drug Recognition Experts (DREs) in the context of impaired drivers. Such individuals, usually active or retired law enforcement officers, are trained to identify signs of impairment using a standardized 12-step process. The question the special master was required to answer was whether the testimony of current DREs is admissible in court for purposes of determining impairment where there is no additional evidence, such as blood or urine testing, to support an impairment conclusion.
Following 42 days of testimony, the special master’s recommendation was that testimony of DREs be admissible for testimony on the topic of perceived impairment while driving. Among the special master’s findings was that in more than 2,500 cases where a detained driver was also the subject of a toxicology report, the DREs accurately reached the same conclusion in 97 percent of tested cases.
The special master’s report is now awaiting the Supreme Court’s review. It is likely that the court will accept all or most of the special master’s recommendations, although that remains an open question until the court rules. But in either event, this report will undoubtedly be relevant to the Cannabis Regulatory Commission’s decision of whether, and how, to train and certify WIREs for use in cannabis impairment claims at work.
The recreational marijuana statute itself provides that an employer may lawfully discipline or terminate an employee under the influence of cannabis at work, but that the mere presence of marijuana in a person’s system does not prove an individual is high or impaired. But without standards to determine who may serve as a WIRE, law enforcement agencies and private employers alike are unable to hire and utilize such experts.
If the Supreme Court accepts the special master’s recommendation that a DRE’s testimony in criminal matters is deemed reliable and is based upon scientific evidence, that will presumably go a long way toward the CRC promulgating regulations similarly addressing the training of WIREs in the area of cannabinoids.
In fact, the new law allows DREs to qualify as WIREs if they receive training that is substantially equivalent to that which will be approved by the CRC for WIREs.
The CRC has issued what amounts to temporary guidance on workplace impairment. It permits employers to make determinations of workplace impairment without requiring a WIRE.
The guidance can be found at the following link: Https://www.nj.gov/cannabis/documents/businesses/business%20resources/workplace%20impairment%20guidance%20922.pdf
This guidance will be effective until the CRC approves standards for WIRE certifications.
In any event, we will continue to keep the State PBA and its members advised of any developments.