CUMCA clarifies the Compassionate Use Act by specifically adopting two provisions protecting authorized users of medical marijuana.
On July 2, 2019, New Jersey Governor Phil Murphy signed into law the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA), amending the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:61-2 et seq. (Compassionate Use Act). As a result of CUMCA, New Jersey now offers employment protections for lawful users of medical marijuana and joins a growing list of other states affording such protections, including Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma, Pennsylvania and Rhode Island, among others.
Compassionate Use Act
The purpose of the Compassionate Use Act, first adopted in 2009, was to decriminalize medical marijuana use in New Jersey. The Compassionate Use Act did not, however, include any employment protections for users of medical marijuana and expressly provided that it did not require an employer “to accommodate the medical use of marijuana in any workplace.” A New Jersey employer recently relied on this language in seeking dismissal of an employee’s disability discrimination claim based on the employer’s refusal to accommodate the employee’s off-duty use of medical marijuana. See Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416 (App. Div. 2019). In Wild, the New Jersey Appellate Division found that the Compassionate Use Act does not insulate an employer from its obligation under the New Jersey Law Against Discrimination to provide reasonable accommodations to an employee with a disability. The Wild court ruled that the employee stated a claim of disability discrimination sufficient to survive a motion to dismiss, recognizing that the employer may challenge the validity of the claim at a later stage in the proceedings if the employee’s off-duty use of medical marijuana precluded the employee from performing the duties of his job. To read more about the Wild decision, please see our May 1, 2019, Alert.
CUMCA clarifies the Compassionate Use Act by specifically adopting two provisions protecting authorized users of medical marijuana; however, CUMCA, like the Compassionate Use Act, does not require an employer to allow use of medical marijuana in the workplace.
Employers Now Prohibited From Discriminating Against Medical Marijuana Users
CUMCA expressly prohibits an employer from taking any adverse employment action against a medical marijuana user if that adverse employment action is “based solely on the employee’s status” as a medical marijuana user (emphasis added). An “adverse employment action” is defined in the law as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”
Notably, the use of the word “solely” leaves ambiguity regarding whether it is permissible for an employer to take an adverse employment action based on an employee’s status as a medical marijuana user and some other factor, like the safety-sensitive nature of the employee’s position.
However, CUMCA does not “restrict an employer’s ability to prohibit or take adverse employment action for the possession or use of intoxicating substances during work hours or on workplace premises outside of work hours.” Moreover, an employer is permitted to take an adverse employment action against a medical marijuana user if the employer’s accommodation of the employee’s medical marijuana use would “violate federal law or result in the loss of a federal contract or federal funding.”
New Drug Testing Procedures for Marijuana
CUMCA does not prohibit drug testing, but rather establishes new procedures to be followed when an employee or applicant tests positive for marijuana. Specifically, an employer must give the employee or applicant written notice of the positive test result and an opportunity to provide a “legitimate medical explanation for the positive test result.” Thereafter, within three working days after the employee or applicant receives the written notice, the employee or applicant may either provide a legitimate medical reason for the positive test result, or may request retesting at the employee’s or applicant’s expense. The legitimate medical reason may include authorization for medical marijuana use by a healthcare provider, proof of registration for medical marijuana use or both.
While CUMCA does not prohibit adverse employment action against an authorized user of medical marijuana who tests positive if the basis for the adverse action is not solely the positive test result, employers should be prepared to defend their rationale for such adverse action, as litigation on this issue can be expected.
What This Means for New Jersey Employers
Employers in New Jersey who conduct drug testing should immediately review and update their drug testing policies and procedures to ensure compliance with CUMCA. Specifically, employers should prepare protocols for responding to drug test results that are positive for marijuana, including preparation of a written notice to the employee or applicant who tests positive advising the individual of: (1) the positive drug test results for marijuana; (2) the right to (a) provide a legitimate medical explanation for the positive result, or (b) request a confirmatory retest of the original sample at the individual’s own expense; and (3) the three-day deadline for providing an explanation or requesting a retest.
In addition, employers should train human resources staff and supervisors on the anti-discrimination provisions in CUMCA, as well as any new policies or protocols adopted by the employer based on the mandates of CUMCA. Given CUMCA, employers should confer with counsel when evaluating the legal risks associated with taking an adverse employment action against an authorized user of marijuana in a safety-sensitive position who tests positive against concerns that the positive test result is indicative of the employee’s inability to perform the essential functions of the job without posing a risk of harm to the employee or others.
For Further Information
If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any of the attorneys in our Cannabis Industry Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.