New Jersey Medical Marijuana Amendments Expand Employment Protections

New Jersey has expanded its medical marijuana program and—for the first time since the state enacted the law—adopted formal protections for employees and job applicants who use what is now called "medical cannabis." The amendments took effect on July 2, 2019, when New Jersey Governor Phil Murphy (D) signed Assembly Bill (AB) 20, the Jake Honig Compassionate Use Medical Cannabis Act, into law.

The newly amended law provides that employers cannot take adverse employment action solely because an individual is a registered qualifying medical cannabis patient. The law defines adverse employment action as: (1) refusing to hire or employ an individual; (2) barring or discharging an individual from employment; (3) requiring an individual to retire from employment; or (4) discriminating against an individual in compensation or in any of the terms, conditions, or privileges of employment. In a nod to federal law, which continues to prohibit the use of marijuana and marijuana products, these restrictions on employer action do not apply if the employer would violate federal law, lose a licensing-related benefit pursuant to federal law, or lose a federal contract or federal funding as a result.

New Jersey's expanded medical cannabis law does not prohibit employers from taking adverse action, in appropriate circumstances, based on test results. The law does, however, prescribe a process for both parties following a positive test result. If an applicant or employee tests positive for cannabis, the employer now must provide the tested individual with a written notice advising of the right to offer a legitimate medical explanation for that result and, independently, the right of the tested individual to obtain a confirmatory re-test of the original sample at the individual's expense. Medical cannabis users are entitled to three days in which to respond to the notice, and in responding, may present authorization for medical cannabis issued by a health care practitioner, proof of registration with New Jersey's Cannabis Regulatory Commission, or both. Once the individual has had the opportunity to respond, the employer presumably can decide whether to take adverse action based on the positive test result, provided that the employer's decision does not turn solely on the individual's status as a marijuana patient. Earlier versions of the bill that would have prohibited employer action based on medical cannabis use were defeated.
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