On July 2, 2019, Governor Phil Murphy signed a new law that amends New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act (formerly the New Jersey Compassionate Use Medical Marijuana Act) (the “Act”) to create job protections and new procedures for drug testing, among other changes. The amendments to the Act took effect immediately upon signing.
Anti-discrimination Provisions
Prior to its recent amendment, the Act created several questions about an employer’s responsibilities towards an employee who is legally using medical marijuana. Specifically, the Act as initially passed stated that nothing in the Act should be construed to require “an employer to accommodate the medical use of marijuana in any workplace.” This language was stricken by the new amendments.
The Act now expressly prohibits employers from taking adverse employment actions against employees based solely on the employee’s status as a legal medical marijuana user. Employers cannot refuse to hire, discharge or otherwise discriminate against a medical marijuana-using employee in any terms or conditions of employment.
Practically, this means that if an employee is taking medical marijuana the employee is generally protected from discharge or other adverse employment actions on this basis. The Act does not specifically address whether the employer must accommodate an employee by allowing such usage even if the employee is impaired on the job and cannot perform the essential functions of the job by reason of using medical marijuana. However, permitting a medical marijuana card to serve as a blank usage check to employees is inconsistent with the New Jersey courts’ interpretation of employer obligations to provide reasonable accommodations under the New Jersey Law Against Discrimination, including the Appellate Division’s recent case, Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416 (App. Div. 2019). If an employer can show that a non-discriminatory reason exists for an employment decision that impacts a medical marijuana user, the face of the Act should not prohibit employer actions against an employee. For instance, the Act does not expressly impede an employer from taking action against an employee because of the employee’s inability to perform essential job functions rather than based on the employee’s status as user of medical marijuana.