New Jersey recently joined a growing number of states, including Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma and Rhode Island, that afford certain job protections to employees and applicants who use medical marijuana.
On July 2, 2019, New Jersey Governor Phil Murphy signed the Jake Honig Compassionate Use Medical Cannabis Act into law, which significantly amended and expanded the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:61-2 et seq.
The New Jersey Compassionate Use Medical Marijuana Act originally was enacted to decriminalize the use of medical marijuana and expressly excluded employment protections. Specifically, the law stated that “nothing” in the act required “an employer to accommodate the medical use of marijuana in any workplace.” N.J.S.A. 24:6I-14. However, a New Jersey appeals court recently concluded that New Jersey employers still may be obligated to provide reasonable accommodations under the New Jersey Law Against Discrimination (NJLAD). In Wild v. Carriage Funeral Holdings, Inc., Docket No. A-3072-17T3 (N.J. App. Div. March 27, 2019), the appeals court held that an employee who was fired after testing positive for medical marijuana (which he used to treat pain caused by his cancer) could sue his former employer for disability discrimination under the NJLAD for failing to accommodate his medical marijuana use during “off-work hours.”
Under the recent amendment to the New Jersey Compassionate Use Medical Marijuana Act, employees and job applicants who use lawful medical marijuana off premises and during non-working hours are now expressly protected from discrimination. The amended law prohibits employers from taking adverse employment action against an employee or applicant “based solely on the employee’s status” as a registered medical marijuana patient. The new law defines “adverse employment action” 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.”
Although the amendment limits a New Jersey employer’s ability to enforce a zero-tolerance drug policy, employers may continue to conduct drug tests in accordance with state law. The amendment also imposes new obligations on employers when an employee or applicant tests positive for marijuana. For example, the employer must provide the employee or applicant with written notice of the positive test result and notify him or her of his or her right to explain the positive drug test result by presenting a “legitimate medical explanation” within three workdays. An acceptable explanation may include a health care provider’s authorization to use medical marijuana or proof of registration with the Cannabis Regulatory Commission. The notice also must inform the employee or applicant of the right to request a confirmatory retest of the original sample at his or her own expense within the three-day period.
Notably, the amendment does not restrict an employer from maintaining policies that prohibit, or from taking adverse employment action for, “the possession or use of intoxicating substances during work hours or on workplace premises outside of work hours.” In addition, the amended law includes a carve-out allowing employers to take an adverse employment action against a medical marijuana user if the employer’s accommodation of the employee or applicant’s lawful off-duty use would “violate federal law or result in the loss of a federal contract or federal funding.”
The amendment took effect immediately, so New Jersey employers should not delay in reviewing and updating their pre-employment drug screening application process and drug testing policies for compliance.