By David M. White and Mollie Hartman Lustig
If you’re one of the more than 325,000 employers in New Jersey — especially among the 80% with fewer than 10 employees — there’s a good chance you’re not fully prepared for what’s coming.
With cannabis now legal for adult use, small businesses are facing a double challenge: respecting employees’ rights to engage in lawful, off-the-clock cannabis use, while also maintaining safe, hazard-free workplaces.
And the truth is, most aren’t equipped to navigate this new terrain.
That’s why, on Sept. 9, 2022, the state Cannabis Regulatory Commission (NJ-CRC) released interim guidance on a groundbreaking new role: the Workplace Impairment Recognition Expert, or WIRE.
Created under New Jersey’s law that legalized and regulates recreational use of cannabis for adults 21 years of age and older, WIRE is designed to help employers avoid knee-jerk reactions—like suspending, demoting, or firing someone — based solely on suspected cannabis impairment.
It’s a major step toward balancing workplace safety with employee rights. Understanding how to implement it is where many businesses are still playing catch-up.
Can ‘interim’ be forever?
The enforceability of guidance issued by a governmental agency in New Jersey depends on its nature and the context in which it is applied. While courts have recognized that informal guidelines or policies may still merit consideration as practical interpretations of statutes by the agencies charged with their enforcement, such guidelines may influence compliance and enforcement decisions. They do not, however, carry the same binding legal effect as formally adopted rules.
The New Jersey Revised Statutes distinguish formal rules from regulatory guidance. In contrast to formally enacted legislation, guidance lacks the necessary imprimatur of legitimacy. Interim guidance that has not been formally adopted as a rule under the Administrative Procedure Act cannot impose new or additional requirements beyond those established by existing state or federal laws or rules.
Such guidance is not a substitute for law or regulation in enforcement actions.
Ready for work
Beyond the Garden State, the WIRE genesis marked an important national legislative and regulatory epiphany: the mere detection of cannabinoid metabolite is not proof-positive of real-time impairment.
Depending upon variables including physiology and frequency of consumption, trace markers of tetrahydrocannabinol or THC — the primary psychoactive component in cannabis — can remain detectable in blood, saliva, and urine for up to 45 days.
This does not mean that an individual’s cognitive and/or motor skills are persistently affected. One could smoke a joint or eat an edible at 8 p.m. and report to work at 9 a.m. sober as a judge.
And therein lies the challenge: presence does not equal impairment.
Free market rules
In the land of the blind, the one-eyed man is king. But is a monocular monarch’s guidance of any real utility to New Jersey employees and the companies for which they labor?
Yes.
The CRC has done a yeoman’s job in identifying a pressing need. It sketched out a workable structure which includes:
- Compliance with New Jersey Supreme Court authority
- Recognition of training curricula, which can be customized/scaled to meet individualized needs
- Suggestion of a standard operating procedure by which to ensure the equitable treatment of all employees.
While knowledgeable observers can – and should – express constructive dissatisfaction with the regulatory enforcement stasis, the CRC merits kudos for doing what no similar oversight body has done in any other state.
Until legislative action or common law breaks the inertia, free-market conditions will govern. Successful civil suits will provide the impetus for corporate compliance.
The path forward
Regardless of their seat at the system design table, New Jersey employees and those for whom they labor find common cause. If they are intellectually honest, both factions respect the dynamic tension between the constitutionally enshrined right of a worker to engage in lawful, off-the-clock activity (the consumption of THC in any of its many forms), and an employer’s non-delegable duty to create and to maintain a hazard-free workplace.
How do we actualize the will of the people and the spirit – if not the law – of the land? Three simple steps.
- New Jerseyan need greater awareness of the state’s cannabis law, the WIRE, and the Interim Guidance. In casual conversation and professional discourse, see how few of your friends and professional colleagues can explain any of the three. Until you know “this is a thing,” there is nothing to be done.
- Invest the time to visit the CRC website “Business Resources” tab or to avail yourself of the New Jersey State Bar Association resources which continue to be the vanguard of voices to champion legislative and regulatory clarity.
- Third, embrace the Interim Guidance as if it was the law. Chicken soup may not cure the common cold. But it can’t hurt.
Adherence with observed best practices – and common sense – will not make an employer immune from litigation, meritorious or otherwise.
It will, however, simultaneously promote the dignity of those who live, strive, and survive in Garden State workplaces while mitigating a responsible corporate citizen’s litigation risk.
David M. White is professor of Legal Practice and director of the Seton Hall University School of Law Conflict Management Program. A former special consultant to the NYPD Chief of Strategic Initiatives and chief legal officer for three vertically integrated medical cannabis companies, he serves on the New Jersey State Bar Association Cannabis and Psychedelics Law Special Committee.
Mollie Hartman Lustig, Esq., a partner with McLaughlin & Stern, LLP, chairs the firm’s Cannabis Practice. She serves as co-chair of the New Jersey State Bar Association Cannabis and Psychedelics Law Special Committee.
Seton Hall School of Law student Daria Beshentseva provided research assistance.