Effective immediately, registered users of medical marijuana (or, as referred to in the law, “cannabis”) in New Jersey are entitled to certain employment-related protections. The new law, signed by Governor Murphy on July 2, 2019, also renames the state’s 2010 Compassionate Use Medical Marijuana Act the “Jake Honig Compassionate Use Medical Cannabis Act”, establishes a new Cannabis Regulatory Commission (“CRC”) to oversee the program, and revises certain requirements for patients, prescribers, caregivers, producers and dispensaries.
The Act
prohibits employers from taking adverse employment action
– defined as refusing to hire, discharging, forcing to retire, or discriminating in compensation or other terms, conditions or privileges of employment – based solely on an individual’s status as a medical cannabis patient registered with the CRC.
Unlike New York City’s recent legislation (read NFC’s e-alert on NYC’s ban
[HERE]
), the New Jersey law does not prohibit employers from drug testing job applicants for cannabis, but rather imposes requirements in the event of a positive test result. In New Jersey, if an employee or job applicant now tests positive for cannabis pursuant to the employer’s drug testing policy, the employer must provide the individual written notice of the opportunity to present a “legitimate medical explanation” for the positive result. Within 3 working days of the notice, the employee or applicant may submit information to explain the positive test result or may request a retest of the original sample at his or her own expense. A legitimate medical explanation may be an authorization for medical cannabis issued by a health care practitioner, proof of registration with the CRC, or both. Importantly, then, employers in New Jersey can no longer have blanket policies that prohibits employment for positive marijuana testing.
Notwithstanding these new protections, an employer may still prohibit, or take adverse employment action for, the possession or use of cannabis during work hours or on the premises of the workplace outside of work hours.
In addition, the new law provides that no employer will be penalized under state law for employing a registered user but does not require an employer to commit any act in violation of federal law, that would result in loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding. Thus, an employer may consider its obligations to maintain a drug-free workplace in connection with its federal contracts, licenses or grants in determining what actions to take in the event of a positive cannabis test by an applicant or employee in New Jersey.
