New Jersey’s Amended Medical Marijuana Law Provides Job Protections And Includes Drug Testing Procedures
New Jersey Governor Phil Murphy signed into law on July 2, 2019 the Jake Honig Compassionate Use Medical Cannabis Act (“CUMCA”) to expand patient access to medical marijuana and to reform the State’s medical marijuana program. The law amends the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:61-2 et seq., (and changes its name to the Jake Honig Compassionate Use Medical Cannabis Act). The CUMCA makes several substantive changes to New Jersey’s medical marijuana program, including providing job protections to medical marijuana users and creating new drug testing procedures. The law took effect upon signing.
Prior to this amendment, the CUMCA did not explicitly require employers to accommodate medical marijuana use, and provided that nothing in the law required an employer to accommodate an employee’s use of medical marijuana. However, recent New Jersey case law suggested that New Jersey’s anti-discrimination statute, the New Jersey Law Against Discrimination, 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), which we blogged about here.
The CUMCA, as amended, endorses the New Jersey Appellate Division’s decision in Wild. The CUMCA now 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 by the law 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 is permitted to take an adverse employment action against a medical marijuana patient if the employer’s accommodation of the employee’s medical marijuana use would “violate federal law or result in the loss of a federal contract or federal funding.”
The CUMCA amendment does not prohibit drug testing, but creates new procedures to be followed when an employee or applicant has tested positive for marijuana. Specifically, 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.” Thereafter, within three working days after the employee or applicant receives the written notice, the employee or applicant may either provide a legitimate medical reason for the positive test result, or may request retesting at the employee or applicant’s expense. The legitimate medical reason may include 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.
New Jersey is among a growing list of states—including Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma and Rhode Island, among others—that offer employment protections for authorized users of medical marijuana. Employers should consult legal counsel to navigate compliance with varying state and federal laws relating to marijuana use.