NJ Now Has Greater Protections for Employees Who Are Cannabis Users
PUTTING PEOPLE FIRST
On July 2, 2019, New Jersey Governor Phil Murphy signed a bill into effect that overhauls the state’s existing medical cannabis program and law, the Compassionate Use of Medical Marijuana Act (CUMMA), and greatly expands patient access to medical marijuana.
For employers who must address the issue of employees and job applicants who use and test positive for cannabis, the New Jersey Assembly Bill A20 provides certain job protections for medical cannabis users. This is a significant change for employees and employers, since CUMMA previously did not explicitly contain such protections. These changes are summarized below.
The CUMMA Amendment
Assembly Bill A20 now contains a non-discrimination provision which provides that an employer cannot take an adverse employment action against an employee “based solely on the employee’s status as a registrant” for medical cannabis. Unlike the previous draft of the bill, there is no carve-out in Assembly Bill A20 allowing an employer to discriminate against a medical cannabis user if there is a “rational basis” for doing so.
Although Assembly Bill A20 permits employers to maintain drug testing programs, it sets forth procedures to be followed if an employee or job applicant tests positive for cannabis:
The employer must give written notice to the employee of the positive test.
The notice must inform the employee of his or her right to “present a legitimate medical explanation for the positive test result.”
The employee has three working days from receipt of the written notice to “submit information to the employer to explain the positive test result,” or the employee may request a retest at the employee’s expense.
The employee may present a doctor’s authorization to use medical cannabis or proof of registration under CUMMA, as an explanation for the positive test result.
It is important to note that Assembly Bill A20 allows employers to discipline or fire an employee for possession or use of medical cannabis “during work hours.” There is also a carve-out permitting an employer to discriminate against a medical cannabis user if the failure to do so would result in the employer’s violation of federal law or loss of a federal contract or funding.
This new law is a dramatic change from the previous version of CUMMA, which did not require employers to “accommodate the medical use of marijuana in any workplace.” Employers that previously implemented and enforced zero-tolerance drug policies will need to immediately review and update their policies and practices accordingly.
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