By Keya C. Denner and Mark A. Saloman
With the signature of legislation expanding the legal use of medical cannabis in New Jersey, this article provides guidance for employers wondering how to deal with employee cannabis use.
On 2 July 2019, New Jersey Governor Phil Murphy signed a much-anticipated bill into effect that expands and revises the state’s existing medical cannabis programme, the Compassionate Use of Medical Marijuana Act (CUMMA). For employers faced with employees and job applicants who use cannabis, New Jersey Assembly Bill A20 provides certain job protections for medical cannabis users. This is a significant change for employees and employers, since previously CUMMA did not explicitly contain such protections, and guidance from courts was inconclusive and slow-developing. These changes are summarised below.
The CUMMA Amendment
Breaking with the previous version of CUMMA, Assembly Bill A20 now contains a non-discrimination provision which provides that an employer cannot take an adverse employment action against an employee ‘based solely on the employee’s status as a registrant’ for medical cannabis. Unlike the previous draft of the now aborted adult-use cannabis bill, there is no carve-out in Assembly Bill A20 allowing an employer to discriminate against a medical cannabis user if there is a ‘rational basis’ for doing so.
Although Assembly Bill A20 permits employers to maintain drug testing programs, it sets forth procedures to be followed if an employee or job applicant tests positive for cannabis:
- The employer must give written notice to the employee of the positive test.
- The notice must inform the employee of his or her right to ‘present a legitimate medical explanation for the positive test result.’
- The employee has three working days from receipt of the written notice to ‘submit information to the employer to explain the positive test result,’ or the employee may request a retest at the employee’s expense.
- As part of his or her explanation for the positive test, the employee may present a doctor’s authorisation to use medical cannabis or proof of registration under CUMMA.
Like several other state medical cannabis laws across the country, Assembly Bill A20 allows employers to discipline or fire an employee for possession or use of medical cannabis ‘during work hours.’ There is also a carve-out permitting an employer to discriminate against a medical cannabis user if the failure to do so would result in the employer’s violation of federal law or loss of a federal contract or funding.
Employers’ Bottom Line
Adding job protections for cannabis users is a sea change from the previous version of CUMMA, which did not require employers to ‘accommodate the medical use of marijuana in any workplace.’ Employers that traditionally relied on ‘zero tolerance’ drug policies will need to update their policies and practices accordingly.