New Jersey joins the growing list of states to offer employment protections for authorized users of medical marijuana. On July 2, 2019, New Jersey’s governor signed into law the Jake Honig Compassionate Use Medical Cannabis Act(“CUMCA”), providing job protections to medical marijuana users and creating new drug testing procedures for marijuana. The new law also changes the name of the New Jersey Compassionate Use Medical Marijuana Act (N.J.S.A. 24:61-2 et seq.), expands patient access to medical marijuana, and reforms New Jersey’s medical marijuana program.

Prior to these amendments, the law did not expressly require employers to accommodate medical marijuana use. In fact, it said just the opposite: “Nothing in this act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.” Now, employers may be required to accommodate medical marijuana use to treat a disability.

Adverse Action Prohibited

The CUMCA, as modified, expressly prohibits an employer from taking any adverse employment action against a medical marijuana user if that adverse employment action is “based solely on the employee’s status” as a medical marijuana patient. The law specifically 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.”

However, the law affords certain exceptions.

• The CUMCA does not “restrict an employer’s ability to prohibit or take adverse employment action for the possession or use of intoxicating substances during work hours or on workplace premises outside of work hours.”
• An employer may take an adverse employment action against a medical marijuana patient if accommodating the employee’s medical marijuana use would “violate federal law or result in the loss of a federal contract or federal funding.”

Drug Testing Procedures for Marijuana

While the CUMCA amendments do not prohibit drug testing, the law creates a new procedure employers must follow when an applicant or employee has tested positive for marijuana.

The employer must give the applicant or employee written notice of the positive test result and offer the applicant or employee an opportunity “to present a legitimate medical explanation for the positive test result.” Subsequently, within three working days after the applicant or employee receives the written notice, the applicant or employee either may provide a legitimate medical reason for the positive test result, or may request retesting at the applicant or employee’s expense.

A legitimate medical reason under the law includes: (1) authorization for medical marijuana use by a health care provider; (2) proof of registration for medical marijuana use; or (3) both.

The CUMCA amendments took effect upon signing. Employers in New Jersey should review and update their equal employment opportunity and drug testing policies for applicants and employees to comply with this law.