Prior to July 2nd, New Jersey’s Medical Cannabis Act lacked protections for employees’ off-duty medical marijuana use. Indeed, last year the U.S. District Court for the District of New Jersey held that nothing in the Medical Cannabis Act “requires an employer to waive a drug test as a condition of employment for federally-prohibited substance.” Cotto v. Ardagh Glass Packing, Inc., 2018 U.S. Dist. LEXIS 135194 (Dist. N.J. 2018). The Act previously provided that it should not be construed to require an “employer to accommodate the medical use of marijuana in any workplace.” Further, unlike the Delaware and Pennsylvania Acts, the NJ Act did not contain an anti-discrimination clause.
That all changed at the beginning of this month.
On July 2nd, New Jersey Governor Phil Murphy signed a bill amending the NJ Act and adding several provisions affecting the workplace:
- The NJ Act now contains an express anti-discrimination clause. Employers are prohibited from taking any adverse action against a registered qualifying patient based solely on the individual’s status as a registered qualifying patient. This means that employers cannot discharge, discipline, refuse to hire or otherwise affect the terms and conditions of employment simply because an individual is registered to use medical marijuana.
- The language regarding no duty to accommodate has been removed. However, the Act now expressly provides that employers may prohibit the use of medical marijuana during work hours and anywhere on the employer’s premises, regardless of whether the employee is on or off duty.
- The amendments also provide a safety net for employers who wish to avoid violating federal law or losing federal funding. The Act now states that employers are not required to commit any act that would violate federal law – i.e. allowing a DOT regulated truck driver to drive while using medical marijuana. Additionally, employers are not required to commit any act that would result in the loss of a license provided by federal law or that would result in the loss of a federal contract or of federal funding.
- Most notably, under the amendments, NJ employers must provide notice to applicants or employees who test positive for cannabis, that they have the right to provide a “legitimate medical explanation” for the positive result. The applicant or employee has three working days to provide this information. Within the three-day window, the applicant or employee may also request a confirmatory test of the original sample, provided the employee foots the cost.
Employers in New Jersey should take notice of the amendments, which became effective immediately, and revise their drug testing policies and procedures to ensure compliance. Moreover, it is important to remember that individuals using medical marijuana in accordance with state law, in New Jersey and in the other states where medical marijuana is legal, likely are protected by state disability discrimination laws. Accordingly, employers should be mindful of their obligations to engage in the interactive process with employees who disclose medical marijuana use. The days of zero tolerance policies regarding marijuana are now nothing more than a pipe dream!
If you have any questions regarding your drug testing policy or the drug testing laws in your state, please contact Denise Elliott at firstname.lastname@example.org or any other member of the McNees Labor and Employment Group.