NJ Law changes involving Medical Marijuana and the Workplace
There have been some recent developments in NJ cannabis law: a recent court decision (‘Wild’) involving the disability discrimination claims of a worker who used medical marijuana, and the newly enacted Jake Honig Compassionate Use Medical Cannabis Act.
A recent court decision and a change in New Jersey’s medical marijuana law should make the Medical Marijuana patients feel a little more comfortable about their protections under the NJ law.
For many years, employers and courts concluded that marijuana use (including medical marijuana) is illegal under federal law, so employers could continue with their zero tolerance policies. California was the first state to authorize medical marijuana, and it did not provide any employment law protections for medical marijuana patients. Over a decade ago, the California Supreme Court in Ross v. RagingWire Telecommunications,174 P.3d 200 (Cal. 2008), concluded that nothing in the medical marijuana statute required employers to accommodate medical marijuana use.
On July 2, 2019, Governor Murphy signed into law the Jake Honig Compassionate Use Medical Cannabis Act, N.J.S.A. C24:6I-2, et seq. Importantly, the “nothing in this act” language, which forms the basis for the cert petition, has been replaced with a new section that provides: “It shall be unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant with the commission.”
That patient friendly provision now moves New Jersey into the group of states whose medical marijuana laws expressly provide employment law protections for medical marijuana users (i.e., Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Nevada, Oklahoma, Pennsylvania, Rhode Island and West Virginia).
The Honig Act further established a procedure that employers must follow when an employee tests positive for marijuana.
If an employee (or prospective employee) tests positive for cannabis, the employer is now required to: (i) provide written notice of the right to provide a valid medical explanation for the test result; and (ii) offer an opportunity to present a valid medical explanation for the result.
The employee or applicant then has three working days after receipt of that written notice to explain the result or request a retest of the original sample (at the employee’s expense). A valid explanation for the positive test result may include an authorization for medical cannabis issued by a health care practitioner or proof of registration with the medical marijuana commission.
As a result, if an employee demonstrates that she is a valid medical marijuana user, employers will not be permitted to use that alone as a basis to take adverse employment action, unless the employer can demonstrate one of the federal exemptions applies to it. The Honig Act expressly exempts employers that would be in violation of federal law, would lose a federal contract or federal funding, or would result in a “loss of a licensing-related benefit pursuant to federal law” if the employer failed to enforce their drug free work space policy.
For example, most federal contractors are required to comply with the federal Drug Free Workplace Act, which precludes the possession or use of controlled substances at work sites. 41 U.S.C. §8101(a)(5)(B). Federal contractors in New Jersey may cite the DFWA as a reason they cannot be forced to excuse an employee’s medical marijuana use. Cf. Carlson v. Charter Communications, (9th Cir., Nov. 19, 2018) (explaining federal law, the DFWA, controlled whether a federal contractor could employ a medical marijuana user).
The revised law does permit employers to take adverse action if an employee uses any intoxicating substance, including medical marijuana, during work hours or on work premises at any time.