Cole Schotz Article: New Jersey Enacts Employment Protections For Medical Cannabis Users

Marissa A. Mastroianni

On July 2, 2019, Governor Phil Murphy signed the Jake Honig Compassionate Use Medical Cannabis Act (the “Act”), which amends the formerly known Compassionate Use of Medical Marijuana Act (“CUMMA”) and expands New Jersey’s medical cannabis program.  Employers should pay particular attention to this new development because the Act includes a non-discrimination provision to protect New Jersey medical cannabis users in the workplace.

As we previously blogged, the New Jersey Appellate Division recently afforded medical cannabis users, who suffer from adverse employment actions due to their lawful medical cannabis use, with the ability to pursue a claim under the Law Against Discrimination (“LAD”), despite the fact that CUMMA previously did not include any explicit employment protections. The Act has now codified various employment protections for medical cannabis users. Specifically, pursuant to the Act, employers cannot take an adverse employment action against an employee “based solely on the employee’s status” as a valid medical cannabis user.

The Act also confirms an employer’s right to maintain a drug testing program, but imposes several requirements upon the employer when dealing with a positive test result for cannabis. Specifically, an employer must provide written notice of the positive test result to the employee or job applicant and notify him/her of the opportunity to “present a legitimate medical explanation for the positive test result.” According to the Act, an employee or job applicant must be given at least three (3) working days after receiving the aforementioned written notice to submit information explaining the positive test result or request a retest of the original sample at the employee’s or job applicant’s expense. To explain a positive test result, the Act explicitly permits an employee or job applicant to submit proof of registration as a valid medical cannabis user with the State and/or a doctor’s authorization to use medical cannabis.

Notwithstanding the above provisions, the Act specifically allows employers to “prohibit, or take adverse employment action for, the possession or use of intoxicating substances during work hours or on the premises of the workplace outside of work hours[.]” Further, the Act states that it should not be construed to require an employer to “be in violation of federal law, that would result in a loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.”

Overall, New Jersey employers should review their workplace drug policies and drug testing programs/procedures to ensure compliance with the Act. Except for federal contractors, as noted above, employers should also refrain from making a hiring decision or taking any adverse employment action against an employee based solely upon their valid use of medical cannabis.

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