NJBIA's Public Policy Forum: The Road to Recovery REGISTER

In its continuing efforts to ensure that workplace cannabis rules protect an employer’s right to maintain a drug-free workplace, NJBIA this week requested the New Jersey Cannabis Regulatory Commission make two key regulatory changes based on available technology. 

In August, the NJCRC, which is implementing the state’s new personal-use marijuana laws, delayed issuing standards for Workplace Impairment Recognition Experts, or WIREs, that businesses are required to use as part of their drug-testing procedures. 

With those decisions on hold, NJBIA Vice President of Government Affairs Ray Cantor urged in a letter to NJCRC Chairwoman Dianna Houenou that the state Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act both: 

  • Allow for “physical evaluations” be done virtually  
  • Accept the training and certification programs of nationally recognized impairment testing organizations as entities who can certify WIREs or the equivalents thereof.   

“These two changes, which are consistent with the Act, will improve workplace safety, allow for the expeditious implementation of the physical examination requirements, and save employers both time and money,” Cantor wrote. 

Under state law, at-work drug testing requires a physical evaluation.  

Because a WIRE may not be readily available at a time when a worker is suspected by an employer to be under the influence, Cantor said the availability of impairment recognition technology and acuity tests can serve the same purpose more accurately and immediately. 

“There is no requirement in the Act that this physical evaluation must be done in-person,” Cantor wrote. “Given the expansion and acceptance of telemedicine at both the state and federal levels, the Commission should interpret the Act’s requirement for a physical evaluation as allowing these examinations to be done virtually. 

“To disallow virtual examinations would set the Commission apart from all other health care entities that now recognize telemedicine as an acceptable means of evaluating a health condition.”   

Cantor continued that impairment recognition technology is being used in New Jersey and elsewhere by major corporations to keep workplaces safe, serve as deterrents to impairment on the job and are “much more effective” than an examination by a Drug Recognition Expert. 

He added that baseline acuity tests, which can be delivered on a tablet, computer or smart phone, can be provided to employees when they begin their employment. Thereafter, a worker could be tested again upon suspicion he or she is under the influence to compare how they performed on the original acuity test. 

If the employee fails the test, they would be required to retake the test. Cantor said a second failure of the acuity test may require the employee to undergo a virtual physical and psychological evaluation, which is typically conducted by a Medical Review Officer (MRO). 

Cantor wrote that there are national associations actively engaged in drug and cannabis testing protocols that train professionals such as MROs and physicians to detect and respond to impairment. 

“Trade organizations like the Drug and Alcohol Testing Industry Association (DATIA.org) can play a key role in the development, delivery, and compliance associated with the WIRE program.,” Cantor said. “The Commission can review these entities’ program offerings and success rate, and under the Act, deem them as an approved private agency that can train WIREs or determine that their trained and certified professionals are the substantial equivalent of such certified professionals. 

“The bottom line is that there already exists a network of trained and certified professionals who can step right into the roles as WIRES or substantial equivalents.” 

To read Cantor’s full letter to the NJCRC, click here.