More recently, however, New Jersey amended its law, now called the Jake Honig Compassionate Use Medical Cannabis Act, to remove the language that resulted in the Wild litigation and include new applicant/employee-side protections. Specifically:
- Employers are prohibited from taking any “adverse employment action” against a “registered qualifying patient” based solely on the person’s status as a registered patient. An “adverse employment action” is defined to mean “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.”
- Employers must provide applicants or employees who test positive for cannabis written notice of their right to explain and their right to provide a “legitimate medical explanation” for the positive test result. The employee has three working days to provide such information, which can include evidence that a health care practitioner has authorized the use of medical cannabis, proof that the applicant or employee is a registered patient, or both. Or, within that same three-day timeframe, the applicant or employee can request a confirmatory retest of the original sample at their own expense.
The silver lining for employers is the amended law includes two employer-side protections. First, the law does not restrict an employer in its ability to take action against an employee who uses or possesses “intoxicating substances” during work hours or on the premises of the workplace outside of work hours. In addition, the amendment states that nothing in the law should be viewed as requiring an employer to commit any act that would cause the employer to be in violation of federal law, that would result in the loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.