What Employers Need to Know
With these recent amendments, the Act now prohibits employers from taking any adverse employment action against an employee or applicant, who is a registered qualifying patient, based solely on the employee’s status as a registrant under the Act. Employers must also now allow an employee or applicant an opportunity to offer an explanation for a drug test that is positive for cannabis or to have the sample retested at the employee’s or applicant’s own expense, as explained in more detail below.
Under the new legislation, employers who rely on drug screening must offer an employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result. Specifically, employers must (i) provide employees and applicants with written notice of the right to offer an explanation and, (ii) give employees and applicants three working days after receiving notice of the positive result to submit an explanation or request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense. An employee or job applicant may present an authorization for medical cannabis issued by a health care practitioner, proof of registration with the commission, or both, as part of an explanation for the positive test result.
Despite the new amendments, the Act does not expressly require employers to accept the explanation because the prohibition against taking an adverse employment action prohibits only an adverse employment action based on registration under the Act; it does not necessarily protect employees who test positive, even those with a legitimate explanation. With that said, employers must be mindful that, earlier this year, New Jersey’s Appellate Division joined the minority of courts in other states that have found an employee may be able to state a disability discrimination claim against an employer who takes an adverse employment action due to the employee’s use of medical marijuana. See our earlier alert on this topic.