Update on Medical Marijuana in the New Jersey Workplace

August 29, 2019

On January 18, 2010, the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 et seq., was signed into law to protect from arrest and other penalties patients who use marijuana to alleviate suffering from debilitating medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce marijuana for medical purposes.

 

Thereafter, on August 10, 2018, the  Federal District Court of New Jersey in Cotto v. Ardagh Glass Packing, Inc. concluded that New Jersey Law Against Discrimination (LAD) does not require an employer to accommodate medical marijuana by waiving the drug testing of employees who are prescribed marijuana. A summary of that case can be read HERE. However, on March 27, 2919,  the Appellate Division in Wild v. Carriage Funeral Holdings addressed the interplay of the LAD and medical marijuana and held that an employer cannot terminate an employee simply because of possession of a marijuana prescription, or using it as directed.  Instead, the employer would also have to prove that it could not “accommodate” the employee’s need for the medication even if it does not affect job performance. A summary of that case can be read HERE.

 

These decisions seem to inconsistently address the question of whether an employer may take an adverse employment action against an employee who was lawfully prescribed and uses medical marijuana.

 

On July 2, 2019, Governor Phil Murphy signed the Jake Honig Compassionate Use Medical Cannabis Act, which prohibits employers from taking adverse employment action against employees solely based on their status as medical marijuana patients. “Adverse employment action” is defined in the statute 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."

 

 This prohibition on taking adverse employment action against a medical marijuana patient is consistent with the Appellate Division’s holding in Wild, above.

 

Regarding drug testing, the new law provides that "[i]f an employer has a drug testing policy and an employee or job applicant tests positive for cannabis, the employer shall offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result, and shall provide written notice of the right to explain to the employee or job applicant."

 

This seems to resolve, at least under New Jersey law, the issue addressed in Cotto, wherein the employee requested and was denied a waiver of the employer’s drug test. Under the new law, the employee would be entitled to do the following upon a positive drug test result: "Within three working days after receiving notice pursuant to paragraph (1) of this subsection, the employee or job applicant may submit information to the employer to explain the positive test result, or may request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense.  As part of an employee’s or job applicant’s explanation for the positive test result, the employee or job applicant may present an authorization for medical cannabis issued by a health care practitioner, a registry identification card, or both."

 

It should of course be noted that the employment protections of this new law are limited. It does not restrict an employer’s ability to prohibit or take adverse employment action against an employee for possession or use of medical marijuana during work hours. Nor does it require the employer to do anything that may result it in losing federal funding, a license under federal law, or a federal contract.

 

If you have any questions as to how this law impacts you, the attorneys at the Zazzali Law Firm are ready to answer any inquiries you may have. 

 

 

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