Currently, California law requires an employer to disclose salary/wage information upon an applicant's reasonable request and after an initial interview has been conducted. If passed, SB1162 would expand this requirement to include current employees requesting pay scale data for the position the individual currently holds and any inquiring candidate, regardless of whether an interview has been conducted. Honoring requests about pay data from both current employees and applicants applies to all employers, even those maintaining less than 15 employees.

California law also currently requires that organizations employing 100 individuals or more report pay data pertaining to 10 specific job categories to the California Department of Fair Employment and Housing (DFEH). These reporting requirements would be expanded under SB 1162 to include the median and mean hourly rate, delineated by race, ethnicity and sex for each job category and would also be applicable to individuals hired via labor contractors. If signed, these terms of the bill would go into effect starting May 1, 2023.

The guidance states that under N.J.S.A. 24:6I-52a(1), employers are not permitted to take adverse action solely due to the presence of cannabinoid metabolites in the employee's bodily fluid; however, employers still have the right to maintain a drug free workplace and may require an employee to undergo a drug test upon reasonable suspicion of an employee's usage of cannabis while engaged in the performance of work responsibilities. Employers are also permitted to conduct drug testing upon finding any observable signs of impairment related to usage of cannabis, or as part of a random drug test program or work-related accident investigation.

Employers should keep in mind that, as noted by the NJ Cannabis Regulatory Commission, a testing method that indicates the presence of cannabinoid metabolites alone is insufficient to support an adverse employment action. However, "such a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee's prescribed work" may be sufficient to support an adverse action employment action.

Additionally, since the Commission has not yet set forth any regulations or guidance on how to become a certified WIRE, the Commission recommends that in the interim, or until guidelines are set forth on how to become a certified WIRE, an employer designate a staff member to assist in making determinations regarding suspected drug use. To determine impairment, this individual may use "cognitive impairment tests - a scientifically valid, objective, consistently repeatable, standardized automated test designed to measure an employee's impairment - or an ocular scan, as possible physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work." The guidance also suggests that a second person be involved in the testing procedures.