New Jersey became the 14th state to allow medical marijuana when the New Jersey Compassionate Use Medical Cannabis Act (“CUMCA”) was signed into law on January 18, 2010. Recently, the act was amended to expand patient access to medical marijuana, to provide job protections to medical marijuana users, and to create new drug testing procedures. By doing so, New Jersey joined multiple other states—including Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma, and Rhode Island—that offer employment protections to users of medical marijuana in compliance with state regulations.
The changes to the law, which are effective immediately, may have been caused at least in part by a landmark decision handed down by the New Jersey Appellate Court earlier this year. For the first time in state history, the court allowed that a plaintiff was entitled to bring wrongful termination claims under the New Jersey Law Against Discrimination (NJLAD) after being fired based on the use of medical marijuana.
A Superior Court trial judge dismissed the discrimination lawsuit filed by Justin Wild, 41, a man diagnosed with cancer who was fired from his job at the Feeney Funeral Home in 2016. The judge ruled that the CUMCA does not require employers to make accommodations on the job for employees using medical marijuana. The Appellate Court disagreed, finding that Wild’s illness fell under the protection of the NJLAD, which requires employers to accommodate people with documented medical disabilities. In accordance with the requirements of the law, Wild’s doctor had approved his use of medical cannabis.
“It would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion,” the Court noted.
The CUMCA, as amended, now expressly prohibits a New Jersey employer from taking any adverse employment action against a medical marijuana user that is “based solely on the employee’s status” as a medical marijuana patient. (An “adverse employment action” constitutes “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.”)
The amendments also change the requirements for how employers are permitted to conduct workplace drug testing. Under the new requirements, if an employee or applicant has tested positive for marijuana, the employer must give the employee or applicant written notice of the positive test result and an opportunity to provide a “legitimate medical explanation for the positive test result” rather than terminating or taking other adverse action against the employee. The employee or applicant has three days following receipt of the notice to either provide a legitimate medical reason for the positive test result or to request retesting at their own expense. The legitimate medical reason can consist of written authorization for medical marijuana use by a health care provider or proof of registration for medical marijuana use.
Additionally, the new provisions increase the amount of cannabis an authorized user can purchase each month and relaxes the requirements for frequent re-certification by a physician for eligibility. The state Health Department reports that the number of registered patients in New Jersey now numbers over 50,000.
The law still allows an employer to prohibit employees from possessing or using intoxicating substances, including cannabis, during work hours or on workplace premises outside of work hours. Cannabis is still classified as a Schedule I substance and is illegal to use under federal law, even for medical purposes; compliance with New Jersey’s laws is no defense to federal action. Employees whose jobs are subject to federal regulation are not protected by the expanded state CUMCA and still may be fired for testing positive or otherwise showing evidence of use. An employer is expressly permitted under the amendments to take an adverse employment action against a medical marijuana patient if the employer’s accommodation of the employee’s medical marijuana use would “violate federal law or result in the loss of a federal contract or federal funding.”
The new provisions took effect immediately upon being signed into law by the governor on July 2, 2019.
Employers in New Jersey who conduct drug testing should review their testing policies to ensure they comply with the additional requirements of the amended law. Employees may wish to consult with legal counsel to navigate compliance with state and federal laws relating to marijuana use in and out of the workplace. If you have questions about medical marijuana, the compassionate use laws, or employment rights and responsibilities under state and federal law, contact the Mark Law Firm. We can be your advocate in requesting accommodations and negotiating the interactive process or assist you in pursuing wrongful termination or other employment claims. Our experienced attorneys handle New Jersey disability discrimination claims, ADA issues, employment law matters, and more. To schedule an appointment to talk to a lawyer, contact us online or call us today.