September 17, 2019

September 17, 2019

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September 16, 2019

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New Jersey Amends Medical Marijuana Law to Provide Job Protections, Include Drug Testing Procedures

New Jersey has provided job protections to medical marijuana users and created new drug testing procedures under new law signed by Governor Phil Murphy on July 2, 2019, that took effect upon signing.

The new law also changes the name of the New Jersey Compassionate Use Medical Marijuana Act (N.J.S.A. 24:61-2 et seq.) to the “Jake Honig Compassionate Use Medical Cannabis Act” (CUMCA), expands patient access to medical marijuana, and reforms the state’s medical marijuana program.

Case Law

Prior to this amendment, the CUMCA did not expressly require employers to accommodate medical marijuana use. Instead, it said that nothing in the law required an employer to accommodate an employee’s use of medical marijuana.

Recent New Jersey case law, however, suggested that New Jersey’s anti-discrimination statute, the New Jersey Law Against Discrimination (LAD), may require employers to accommodate medical marijuana use to treat a disability. See Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416 (App. Div. 2019). (For more on this decision, see our blog post, Medical Marijuana Users May Not Be Discriminated Against In New Jersey.) The CUMCA, as amended, endorses the New Jersey Appellate Division’s decision in Wild.

Adverse Action

The CUMCA expressly prohibits an employer from taking any adverse employment action against a medical marijuana user if that adverse employment action is “based solely on the employee’s status” as a medical marijuana patient.

An “adverse employment action” is defined as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”

However, the amendment does not “restrict an employer’s ability to prohibit or take adverse employment action for the possession or use of intoxicating substances during work hours or on workplace premises outside of work hours.”

Moreover, an employer may take an adverse employment action against a medical marijuana patient if accommodating the employee’s medical marijuana use would “violate federal law or result in the loss of a federal contract or federal funding.”

Drug Testing

The CUMCA does not prohibit drug testing, but it creates new procedures that must be followed when an employee or applicant has tested positive for marijuana.

The employer must give the employee or applicant written notice of the positive test result and an opportunity to provide a “legitimate medical explanation for the positive test result.” Within three working days after the employee or applicant receives the written notice, he or she may provide a legitimate medical reason for the positive test result or request retesting at his or her expense.

The legitimate medical reason may be an authorization for medical marijuana use by a health care provider, proof of registration for medical marijuana use, or both.

Employers in New Jersey who conduct drug testing should review their testing policies to ensure compliance with the law.

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New Jersey is among a growing list of states (including Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma, and Rhode Island) offering employment protections for authorized users of medical marijuana. 

Jackson Lewis P.C. © 2019

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About this Author

Kathryn J. Russo Disability Lawsuits Attorney Jackson Lewis Law firm Alcohol Testing Lawyer
Principal

Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.

Ms. Russo assists clients with workplace problems involving drugs and alcohol, and gives advice about compliance with all pertinent drug and alcohol testing laws. She prepares substance abuse policies to comply with all federal drug and alcohol testing regulations (including all agencies of the U.S....

631-247-0404
Katherine Dicicco Employment lawyer Jackson Lewis
Associate

Katherine M. DiCicco is an Associate in the Monmouth County, New Jersey, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Prior to joining Jackson Lewis, Ms. DiCicco clerked for the Honorable Kenneth J. Grispin, P.J.Cv., of the Superior Court of New Jersey, Union County, Law Division, where she wrote bench memoranda, opinions, and judicial orders. During her clerkship, Ms. DiCicco worked on a variety of complex civil litigation, including matters involving employment law, insurance fraud, environmental law, and business and contractual disputes. She also conducted mediation sessions and settlement conferences between adverse parties in the Union County Special Civil Part.

At Rutgers Law School in Newark, New Jersey, Ms. DiCicco served as a teaching assistant to a tenured professor for both undergraduate and graduate commercial and business law courses, including Secured Transactions and Introduction to American Business Law.

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