New Jersey citizens voted overwhelmingly (by a 2-to-1 margin) in support of Public Question No. 1, which asked whether they approved of amending the New Jersey Constitution to legalize the possession and recreational use of marijuana for adults aged 21 and older in New Jersey. While Public Question No. 1 does not contain express protections for applicants for employment or employees who use recreational marijuana, and while marijuana remains an illegal drug under federal law, employers doing business in New Jersey can continue to expect issues associated with marijuana to cause headaches at the workplace.
For instance, the Jake Honig Compassionate Use of Medical Cannabis Act, which Governor Phil Murphy signed into law on July 2, 2019, and which replaced New Jersey’s former Compassionate Use of Medical Marijuana Act (CUMMA), contains several express employment protections for medical marijuana users. First, the Honig Act makes it unlawful for an employer to take any adverse employment action against an employee who is a registered qualifying patient “based solely on” the employee’s status as a user of medical marijuana. The Honig Act also establishes a procedure that an employer must follow when an applicant or employee tests positive for marijuana.
If an applicant or employee tests positive for marijuana, the employer is required to (1) provide written notice of the right to provide a valid medical explanation for the test result and (2) offer an opportunity to present a valid medical explanation for the result. The applicant or employee then has three working days after receipt of the written notice to explain the result or request a retest of the original sample at the individual’s own expense. A valid medical explanation for the result may include an authorization for medical marijuana issued by a health care practitioner or proof of registration with the Cannabis Regulatory Commission. In addition, the Honig Act includes a carve-out which permits an employer to take an adverse employment action against a medical marijuana user if the employer’s accommodation of the applicant’s or employee’s use of medical marijuana “would cause the employer to be in violation of federal law … or … would result in the loss of a federal contract or federal funding.”