When an Amazon employee in Edison with a medical cannabis card tried to inform his employer that he would fail a drug test due to his prescription, the company allegedly had him take it anyway and fired him for failing it, according to a suit filed in November. A funeral director in Linden was allegedly terminated in 2016 after his employer learned he was prescribed medical cannabis to treat cancer symptoms.
The rapid growth of New Jersey’s medical cannabis patient population, which the Department of Health currently counts at 70,201, has presented employers with a new reality: some of their employees might be consuming cannabis, and they’re allowed to by law. But what’s an employer to do when they worry their employee might be impaired at work?
The Jake Honig Law, which took effect on July 2, doesn’t restrict an employer’s right to prohibit the use of intoxicating substances, legal or illegal, during work hours or on the premises of the workplace. What it does require of employers is that, employees or applicants who test positive for cannabis have three days to provide a legitimate medical explanation for the result. The employee or applicant can also request the sample be retested at his or her own expense before the employer reacts to it.
“It’s clear that if someone tests positive in New Jersey and they are a cardholder, they have the right to offer an explanation, but the statute, as written, does not require the employer to accept it,” explained Adam Gersh, cannabis law attorney and member of Flaster Greenberg PC’s labor and employment and litigation practice groups.
In the case of Wild v. Carriage Funeral Holdings, the New Jersey Supreme Court must decide if the New Jersey Law Against Discrimination’s requirement that employers reasonably accommodate disabilities applies to an employee’s use of legally prescribed medical cannabis, as an appellate court ruled in March, 2019.