In January of 2010, the New Jersey Compassionate Use Medical Marijuana Act was passed, officially decriminalizing the use of medical marijuana in the state. Though the law provided important protections for seriously ill state residents whose doctors had recommended the use of medical marijuana, it also clearly carved out a way for employers to reject and act on the use of medical marijuana by any of their employees. However, following a ruling by a New Jersey appeals court, the state’s governor recently signed a new law which amends that original legislation and provides job protections to employees and applicants who use medical marijuana.
The new law is titled the Jake Honig Compassionate Use Medical Cannabis Act, and it was signed by New Jersey Governor Phil Murphy on July 2, 2019. The law created specific accommodations that require employers to accommodate medical marijuana use during “off-work hours.” In passing the law, New Jersey joins several other states, including Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma and Rhode Island, that have taken action to ensure that employees and job applicants who need medical marijuana and who use it while away from work do not suffer adverse job actions as a result.
The specific legal case that tested the original medical marijuana law was Wild v. Carriage Funeral Holdings, Inc., which involved an employee who had been fired after testing positive for medical marijuana. The employee sued his former employee and, after an initial loss, an appeals court determined that his employer was required to make reasonable accommodations for his medical marijuana use when he was not at work, during “off-work hours.”
The Jake Honig Compassionate Use Medical Cannabis Act serves as an amendment to the previously-passed New Jersey Compassionate Use Medical Marijuana Act. The revision allows both employees and job applicants to use lawful medical marijuana off premises and during non-working hours, without fear of adverse work actions or discrimination: those actions or discriminatory acts are described 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.”
Under the revisions to the original medical marijuana law, employers retain their ability to conduct drug tests on employees in accordance with state law, but their zero-tolerance policies are tempered by a new requirement that they provide written notice of a positive test, as well as three workdays’ time to explain if there is a “legitimate medical explanation” such as authorization from a health care provider or proof of registration with the Cannabis Regulatory Commission. Upon receiving that proof, employers may not proceed with discriminatory or adverse actions. Employers are also required to notify the employee or applicant of their ability to request a retest of the original sample at their own expense within the same three days.
The new law in no way stops employers from barring employees with medical marijuana authorization from using the substance while working or on workplace premises at any time. Additionally, those employers whose accommodation of lawful off-duty use would “violate federal law or result in the loss of a federal contract or federal funding” are exempted from the ruling. However, when an employee tests positive and is able to provide documentation supporting their use of medical marijuana, they cannot suffer adverse employment or hiring effects as a result.
The passage of the Jake Honig Compassionate Use Medical Cannabis Act represents a landmark victory and important protections for New Jersey employees who benefit from the use of medical marijuana as recommended by their health care provider. Schorr & Associates, P.C. has successfully represented medical marijuana users and has been in the forefront in fighting to expand legal protection. If you have been the subject of an adverse employment action based on your legal use of medical marijuana during off-work hours/away from your workplace, your rights may have been violated. For information about the options available to you, contact our office to set up a consultation.