Last month, New Jersey Governor Phil Murphy signed into law the Jake Honig Compassionate Use Medical Cannabis Act (the Act), amending the New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA). The Act expands job protections for employees and applicants who use medical marijuana. With this new law, New Jersey joins a growing list of states (including Massachusetts and New York) offering employment protections for authorized users of medical marijuana.
The NJCUMMA had expressly excluded employment accommodations for medical marijuana users.[1] However, in Wild v. Carriage Funeral Holdings, Inc., Docket No. A-3072-17T3 (N.J. App. Div. March 27, 2019), the New Jersey appeals court held that an employee who was fired after testing positive for medical marijuana could sue his former employer for disability discrimination and failure to accommodate.
The Act now prohibits employers from taking an adverse employment action against an employee or applicant who is a registered qualifying patient based solely on the individual’s status as a registrant. Under the Act, 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.”
The Act also amends how employers should react to a positive test result. Specifically, employers must (i) provide employees and applicants with a written notice of the right to offer an explanation and (ii) give employees and applicants three working days after receiving the notice to submit an explanation or request a second test of the original sample at the employee’s or job applicant’s own expense. Despite the new amendments, the Act 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.” Additionally, the Act expressly authorizes employers to 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.”
With the Act having taken effect last month, employers must amend their drug screening programs and hiring processes to ensure that they are in compliance with the Act. If you have any questions about or need help with this new law, or with any of the rapidly expanding laws on marijuana, our team would be happy to assist you.
[1] “Nothing in the law requires an employer to accommodate an employee’s use of medical marijuana.” N.J.S.A. 24:6I-14
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