This month, New Jersey has expanded the state’s medical marijuana law and limited employers’ ability to inquire about job applicants’ salary history. Employers should review these new laws and ensure compliance, including reviewing their drug screening programs, evaluating their hiring practices to eliminate prior-pay inquiries, and training staff on the requirements of the new laws.
Jake Honig Compassionate Use Medical Cannabis ActOn July 2 Gov. Phil Murphy signed into law the Jake Honig Compassionate Use Medical Cannabis Act, which significantly expanded the state’s existing medical marijuana law to include employment protections for authorized users of medical marijuana, and create additional obligations for employers when drug testing.
Since 2010, marijuana has been legal for medicinal purposes under New Jersey’s Compassionate Use Medical Marijuana Act (CUMMA). CUMMA did not include employment protections for medical marijuana users and, in fact, expressly stated that “[n]othing in this act shall be construed to require. . .an employer to accommodate the medical use of marijuana in any workplace.”
The recent amendments to New Jersey’s new medical marijuana law—which took effect immediately upon enactment—include critical employee protections that will have implications for employers with New Jersey employees, particularly with respect to workplace accommodations and drug testing procedures.
Employee Protections
The amended law expressly prohibits an employer from taking any adverse employment action “based solely on the employee’s status” as a “registered qualifying patient.” Notably, the new law’s use of the word “solely” leaves open the question of whether it is permissible for an employer to take an adverse employment action based on an employee’s status as a medical marijuana user plus some other factor, including, for example, the safety-sensitive nature of the employee’s job. A “registered qualifying patient” is defined as an individual who both (1) has been authorized by a healthcare provider for the medical use of cannabis, and (2) has registered with the state’s Cannabis Regulatory Commission. The new law broadly 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.”
Employers are also now limited in their ability to enforce zero-tolerance drug policies with respect to medical marijuana. Under the amended law, an employee or job applicant who tests positive for marijuana must be given an opportunity to provide a “legitimate medical explanation for the positive test result,” which includes authorization for medical marijuana use by a healthcare provider, proof of registration for medical marijuana use, or both. Employers are required to inform the employee or applicant of this right to explain by way of a written notice. Then, within three working days of receiving...
