Flower to the People: Employees Gain Workplace Protections in New Jersey’s Amended Medical Cannabis Law

Employees and job applicants in New Jersey who are lawful medical cannabis users can hold their heads up high at work, thanks to several added workplace protections in New Jersey’s amended medical cannabis law.

New Jersey’s Amended Medical Cannabis Statute

On July 2, 2019, Governor Phil Murphy signed into law the “Jake Honig Compassionate Use Medical Cannabis Act” (the “Act”), which amended the New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA). Under the Act, New Jersey employers cannot refuse to hire, terminate, force the retirement of, discriminate against, or take any other adverse employment action against an individual based solely on the fact that they are a lawfully prescribed medical cannabis patient. The old law, NJCUMMA, contained one employment-related provision, that employers need not “accommodate the medical use of marijuana in any workplace.” The Act removed that provision but replaced it with a comparable provision allowing employers to prohibit and take adverse actions against applicants and employees who possess or use cannabis during work hours or on workplace premises. In a similar vein, the Act allows for adverse actions based on positive drug test results, but only after the applicant or employee is offered an opportunity (a) to request a retest; or (b) for three days to present a legitimate medical explanation for the positive test result, such as proof of a valid prescription or registration card. Again, this does not mean employers cannot continue prohibiting cannabis from the workplace during work hours and on workplace premises. It just means they may have to accommodate off-site, off-premises use for lawful medical marijuana users.

Specific to the health care industry, the Act also prohibits health care facilities from taking adverse employment actions against health care practitioners that they employ or maintain a professional affiliation with, based solely on the fact that the practitioner prescribes medical cannabis.

Compliance with Federal Law

Cannabis remains illegal for all purposes under federal law. The Jake Honig Compassionate Use Medical Cannabis Act pays tribute to this with a carveout for employers who cannot employ medical marijuana users without losing a federal license, grant or contract. The Act’s prohibition on taking adverse actions against lawful medical cannabis users does not apply if it would force an employer to violate federal law. By way of example, this might be the case for an entity employing truck drivers who are subject to the U.S. Department of Transportation’s regulations that strictly prohibit and mandate the drug testing for all controlled substances (which, under federal law, continues to include cannabis).

New Jersey Case Law Update & Forecast

The Act is not the only strain on employers who are struggling to deal with the blows of cannabis legalization. Earlier this year, the New Jersey Appellate Division in Wild v. Carriage Funeral Holdings held that the New Jersey Law Against Discrimination’s (NJLAD) requirement that employers reasonably accommodate disabled persons applied to an employee’s use of medical cannabis that was legally prescribed under the NJCUMMA. The New Jersey-based funeral services company took a hit for firing its funeral services director allegedly because of his lawfully prescribed medical marijuana use. Distinguishing earlier precedent that allowed an employer to take an adverse action against an employee when it believed the employee was consuming illegal drugs based on a positive drug test, the Wild court pointed out that medical cannabis is no longer illegal under New Jersey law, and it was not enough that it remained illegal under federal law. Moreover, the Wild court held that the NJCUMMA’s then stipulation that employers need not “accommodate the medical use of marijuana in any workplace” does not impact the rights that NJLAD grants to employees, and in turn, the requirement that an employer might be obligated to accommodate off-duty, off-site medical cannabis consumption.

The Act amended the NJCUMMA, which is the law on which the Wild court relied, and thankfully, the Act is much clearer than its predecessor. However, the obligations of employers to accommodate medical cannabis use are still hazy. The appellate court’s decision in Wild is pending review by the New Jersey Supreme Court, and one can only hope that the state’s highest court will address whether New Jersey employers must accommodate activity in the workplace that still constitutes a federal crime. In the meantime, New Jersey employers trying to navigate the landscape of cannabis legalization’s impact on the workplace should tread carefully under the advice of counsel.

For more information on what your organization can do to ensure compliance with the ever-expanding laws on cannabis in the workplace, please contact Harris S. Freier, Esq. at hfreier@genovaburns.com, or Justine L. Abrams, Esq. at jabrams@genovaburns.com, or at 973-533-0777.