Effective immediately: New Jersey has amended its medical marijuana law, significantly impacting employers throughout the state. The previous law, in effect since 2010, specifically stated that “nothing” required “an employer to accommodate the medical use of marijuana in any workplace.” However, a New Jersey appeals court recently disagreed, holding that an employee who was fired after testing positive for marijuana (used medicinally to treat pain caused by cancer) could sue his former employer for disability discrimination for failing to accommodate his medical marijuana use outside of work hours. Wild v. Carriage Funeral Holdings
Now, just a few short months later, the New Jersey legislature seems to be following that precedent by expressly protecting users of lawful medical marijuana off-premises and during non-working hours from discrimination. Under the new law, employers are prohibited from taking any adverse employment action against a current or prospective employee based on that person’s status as a state-registered, qualifying user of medical marijuana. The law defines “adverse employment action” 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.”
Employers may still drug test for marijuana, but they now must follow new procedures when they do so. Upon a positive marijuana drug test result, the employer must offer the employee or job applicant an “opportunity to present a legitimate medical explanation for the positive test result, and shall provide written notice of the right to explain to the employee or job applicant.” (emphasis added)
Within three working days after receiving notice, the employee or job applicant may now submit information to explain the positive test result, including an authorization for medical cannabis issued by a health care practitioner, proof of registration with the commission, or both. In the alternative, he or she may request a confirmatory retest of the original sample at his or her own expense.
A few provisions did not change under the new law. Employers still have the 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. Additionally, an employer is not required to commit any act that would cause him or her to violate federal law or result in the loss of a federal contract or funding.
With the amended law already in effect, New Jersey employers are strongly encouraged to revise their workplace policies to reflect procedures for the new post-positive test results requirements, including the development of the written notice that will be used for those who test positive for marijuana.
Drug testing results are incorporated into the reports at Hire Image. Positive results will be reviewed by our Medical Review Officer (MRO), who will contact the applicant to discuss the test results when they are positive for marijuana. Additionally, if you choose not to hire the applicant, the pre-adverse letter and the adverse letter will automatically be pre-populated with FCRA and New Jersey notifications. Please contact us if you have any questions or would like additional information about this process.