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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.

Jackson Lewis P.C. © 2019

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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...

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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. Department of Transportation), as well as the drug and alcohol testing laws of all 50 states. In addition, she defends employers in litigation where drug and alcohol test results are at issue, and frequently conducts “reasonable suspicion” training for employers in connection with their substance abuse policies. Ms. Russo also counsels employers on leave and disability management issues arising when employees seek leave for substance abuse rehabilitation.

In addition to her workplace substance abuse practice, Ms. Russo concentrates her practice on employment litigation, defending employers in federal and state courts and before administrative agencies and arbitration panels in litigation related to employment discrimination, retaliation, wrongful discharge, whistleblower, wage-hour and related tort and contract claims. Ms. Russo advises clients on compliance with various state and federal laws affecting the workplace, including Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and New York State and City laws, among others. She guides clients through internal investigations, disciplinary actions and medical leave issues, and prepares workplace policies and employee handbooks. Ms. Russo frequently lectures and conducts management training for employers on a wide variety of employment law topics, including EEO/anti-harassment, FMLA, ADA, substance abuse, drug testing and privacy issues.

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