As of July 2, 2019, New Jersey law protects medicinal cannabis users in the terms and conditions of their employment.
Prior to the amendment to what had been the New Jersey Compassionate Use Medical Marijuana Act (now titled the "Jake Honig Compassionate Use Medical Cannabis Act" or the "Act"), New Jersey state law did not expressly require employers to accommodate medical cannabis use. As a result of the recent amendment to the Act, New Jersey state law now expressly prohibits an employer from taking any adverse employment action against a medical cannabis user if that adverse employment action is “based solely on the employee’s status” as a medical cannabis patient.
Adverse Employment Act Defined
The Act 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.”
The amendment to the Act does not restrict an employer’s ability to prohibit or take appropriate employment action for the possession or use of intoxicants during work hours or on workplace premises outside of working hours. Additionally, an employer may still take adverse action against a medical cannabis patient if accommodating the employee’s cannabis use would “violate federal law or result in the loss of a federal contract or federal funding.”
Workers Given Opportunity to Provide "Legitimate Medical Explanation"
Employees in New Jersey testing positive for cannabis must now be afforded an opportunity – following written notice of their failed test – to provide a “legitimate medical explanation for the positive test result” within three working days after receiving notice. A “legitimate medical explanation” may include a healthcare provider’s authorization for medical cannabis use, or proof of registration for medical cannabis use.
New Jersey’s legislation follows the recent passage of cannabis-related employment laws in Nevada and New York City. Several state statutes authorizing medical cannabis use also contain provisions prohibiting discrimination against employees for testing positive for cannabis. Arizona, Arkansas, Connecticut, Delaware, Maine, Minnesota, Oklahoma, Pennsylvania, Rhode Island, and West Virginia all prohibit employers from terminating employment or rescinding a job offer based solely on a positive test for cannabis
Several jurisdictions – including, most recently, Illinois – have legalized recreational cannabis use.1 This does not necessarily mean that recreational users of cannabis in these states are protected from adverse employment action concerning that use.
What Should Employers Do Now?
New Jersey employers should review existing drug testing protocols and policies to revise as necessary for compliance with recent amendments to the Act, keeping in mind the overlay of any federal contracts, funding, or regulation specific to the organization that may conflict.
Multi-jurisdictional employers with a presence in New Jersey face the choice of either adopting a single drug testing policy that applies to all locations or implementing separate jurisdiction-specific policies. In either event, employers should continue to monitor cannabis-related legislation affecting their policies and practices in all the jurisdictions in which they operate, as this is anticipated to remain a rapidly developing area of law.
1 Other than Illinois, jurisdictions that have legalized recreational cannabis use include: Alaska, California, Colorado, the District of Columbia, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington.
This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations. Manufacturing, cultivation, distribution and possession of cannabis remains illegal under federal law and under certain state laws, and is strictly regulated in those states which have legalized medical or recreational cannabis.