New Jersey Expands Medical Marijuana Protection – Creating New Legal Requirements and Liability Dangers for New Jersey Employers
New Jersey’s ongoing drift towards legalized recreational marijuana received yet another shove earlier this month, when Governor Phil Murphy signed the “Jake Honig Compassionate Use Medical Cannabis Act,” significantly amending the prior New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:61-2 et seq.
The new law expands the amount of medical marijuana that can be purchased by New Jersey residents, caps the rate of taxation charged by municipalities on marijuana dispensaries, reduces the amount of required doctor visits necessary to participate in the medical marijuana program, and offers various other expansions, including specific provisions which significantly alter, if not destroy, the ability of New Jersey employers to maintain a “zero tolerance” workplace.
Unlike the original New Jersey Compassionate Use Medical Marijuana Act, which specifically stated that nothing in the law required an employer to accommodate marijuana in the workplace, the new law prohibits adverse employment actions against employees and applicants who use marijuana during off-work hours as a registered medical marijuana patient. Specifically, a “registered qualifying patient” cannot be discriminated against by an employer “solely on the employee’s status as a registrant with the commission.” This rather fuzzy language cloaks the import of this law. This is because, in reality, it is not the registrant’s mere participation as a registration that is the issue, but the registrant’s use of marijuana as a participant that is really being protected by this legislation.
The new law constitutes an attempt to keep pace with recent developments in the New Jersey court system, including the Appellate Division’s decision in Wild v. Carriage Funeral Holdings, Inc., Docket No. A-3072-17T3 (N.J. App. Div. March 27, 2019). In that case, an employee was fired after failing a marijuana drug test where the employee was using marijuana as part of medical treatment for a cancer. Leapfrogging over the explicit language of the New Jersey Compassionate Use Medical Marijuana Act, the Appellate Division simply read into the New Jersey Law Against Discrimination a new right not to be discriminated against for using marijuana as a treatment for a medical condition as a matter of reasonable accommodation.
In this way, the current New Jersey court interpretation of marijuana use as a reasonable accommodation in general for a medical condition (as opposed to being a program participant) is still substantially ahead of the language of the new statute. Put another way, the courts are already outpacing the legislature on this issue, and employers cannot simply rely on strict adherence to the language of the new statute as a safeguard against potential liability under the NJLAD.
As a practical matter, this new statute crosses a rather important “line in the sand” previously enjoyed by New Jersey employers. No more can an employer simply have a “zero tolerance” policy. Of course, this development does not change an employer’s ability to drug test, and the “accommodation” must still be reasonable, but this raises the question of how exactly supervisors and/or human resources can be expected to police the impact of medical marijuana use upon the daily work productivity of a given worker. Furthermore, while there are carve-outs in the new law for situations where allowing such use would violate federal law, the gist is nonetheless clear: human resource departments have a new accommodation requirement to grapple with, with respect to both current employees and applicants.
In addition to the general protections granted by the new law, the statute also provides that employers provide written notification to employees who fail a marijuana test. The employee must be given an opportunity to provide the employer with a “legitimate medical explanation” of the positive drug test.
The silver lining for employers, if there is one, is that employers can still take adverse employment actions against employees who possess or use marijuana on the job. However, exactly how an employer is expected to determine when marijuana “use” occurred, if the employer does not actually observe the marijuana smoking or consumption, is unclear.
At this point, it is seems obvious that the overall expansion of legal cannabis use in New Jersey is inevitable. As this expansion develops, employers need to stay aware of the expansion of these rights, and incorporate these changes in their policies and practices. In the meantime:
- it is time to jettison the “zero tolerance” language in employment policies, because those days are effectively over.
- be sure to provide written notice of drug test failures to marijuana to employees (and applicants), and pay heed to the explanations they receive for the drug test failures.
- carefully scrutinize any decision to terminate employees for off-the-job marijuana use to make certain that the proposed adverse employment action does not run afoul of a “reasonable” accommodation request in the context of an ever-expanding definition of medical “need.”
This blog was written by John MacDonald at Constangy who authors our New Jersey Human Resources Manual. Constangy also authors our Model Policies and Forms for Georgia Employers. You can find additional New Jersey blogs and their Employment & Labor Insider blog (which is one of our favorites and is excellent) on their website.