Last month, Governor Murphy signed the Jake Honig Compassionate Use Medical Cannabis Act, which modifies the state’s Medicinal Marijuana Program and changes how employers can treat employees who test positive for marijuana. The Governor described the statutory revisions as modernizing the medical marijuana program in New Jersey to better meet patients’ needs. One purpose of the legislative reboot is to modify the program to make it more accessible to patients so they can actually use the medicinal marijuana prescribed.
To that end, the statutory changes now provide certain employment protections to patients using medical marijuana. This is an important change as the law’s previous scheme did not require employers to accommodate an employee’s medical marijuana use.
The new law’s employment protections are twofold. The first prohibits employers from taking adverse employment actions against employees or applicants based on medical marijuana use. Importantly, the prohibited adverse employment action is one “based solely on” the employee’s registry as a qualifying medical marijuana patient. However, the new law does not prohibit an adverse employment action against an employee for possessing or using marijuana or other intoxicating substances during work hours or on workplace premises outside of work hours. Employers are encouraged to amend their drug and alcohol-free workplace policy to make this distinction clear.
The second protection relates to employee drug testing. Employers can still drug test applicants (pre-hire, post-offer) as well as employees (post-accident and when a reasonable suspicion exists), but the amendments create new procedures for such testing. If an employee or potential employee tests positive for marijuana, the employee or applicant is entitled to an opportunity to present a legitimate medical explanation for the result. That opportunity should be provided to the employee or applicant through written notice of the positive result and his or her right to explain. Within three days, the employee or applicant can provide the employer with information to explain the positive test result (i.e., authorization for medical marijuana use) or request a new test. Any new test is performed at the employee or applicant’s own expense. We encourage employers to further amend their drug and alcohol-free workplace policy to make these testing requirements clear.
Our team of employment law attorneys is available to assist employers with any questions regarding these new requirements and the necessary policy amendments.
Molly Kellett is an experienced litigator focusing on commercial litigation, construction matters and employment law. She counsels a wide array of clients and handles all stages of complex commercial matters, from contract ...
Michael Shadiack is the Chair of Connell Foley’s Labor and Employment Practice Group. Representing a broad spectrum of employers and management personnel in the private and public sectors, he provides litigation defense and ...