...
Summary of differences between federal and state regulations
Medical marijuana
Under the Jake Honig Compassionate Use Medical Cannabis Act, employers are prohibited from taking a negative employment action against a person who uses medical marijuana based on that person’s status as a medical marijuana patient.
An adverse employment action is defined 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 any terms, conditions, or privileges of employment.
Employers may take adverse action if the employer’s accommodation of medical marijuana use would violate federal law or result in the loss of a federal contract or federal funding.
Employers may prohibit or take adverse action for the possession or use of intoxicating substances during work hours or on workplace premises outside of work hours.
Testing
An employer must follow specific procedures when an employee tests positive for marijuana. An employer must offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result. An employer must provide written notice of the right to explain to the employee or job applicant.
An employee or job applicant has three working days after receiving this notice to submit information to explain the positive test result. An employee or applicant may request a confirmatory retest of the original sample, at the expense of the employee or job applicant. As part of an explanation for a positive test result, authorization for medical cannabis or a registry identification card may be presented.
Prohibitions
The act does not permit a person to operate a vehicle, aircraft, railroad train, stationary heavy equipment, or vessel while under the influence of cannabis.
Marijuana cannot be smoked in any place where smoking is prohibited under New Jersey law.
Workers’ compensation
The state’s supreme court ruled in 2021 that medical marijuana is a reimbursable expense that an employer and their workers’ compensation carrier must cover. The employer argued several points, including the fact that marijuana is still illegal under federal law. The court, however, rejected the arguments and ruled in the injured employee’s favor.
Court rulings
Courts have issued rulings on medical marijuana use. However, these cases were decided before the 2019 amended law took effect.
Court rulings include:
Cotto v. Ardagh Glass Packing (August 10, 2018)
The court ruled that the New Jersey Compassionate Use Medical Marijuana Act and the New Jersey Law Against Discrimination do not require private employers to waive drug tests as an accommodation for users of medical marijuana.
Justin Wild v. Feeney Funeral Home, Superior Court of New Jersey (March 27, 2019)
A New Jersey appeals court ruled that a case involving funeral director who was fired after his employer learned he was using medical marijuana could move forward.
Recreational marijuana
New Jersey’s recreational marijuana law provides employee protections for off-duty use of the drug but gives employers the right to prohibit marijuana use at work and drug test for marijuana under certain conditions.
The law requires that a marijuana test include a physical examination by a Workplace Impairment Recognition Expert, however, that requirement has been temporarily waived as the Police Training Commission develops standards for impairment recognition expert certification.
Employer protections
Under New Jersey's recreational marijuana law, an employer may:
- Maintain a drug- and alcohol-free workplace,
- Prohibit the use, consumption, being under the influence, possession, transfer, display, transportation, sale, or growth of marijuana or marijuana items in the workplace,
- Prohibit the use of marijuana items or intoxication by marijuana during work hours.
Marijuana cannot be smoked in any place where the smoking of tobacco is prohibited.
Driving under the influence of cannabis is prohibited under New Jersey law.
Employee protections
Employers may not refuse to hire, discharge or take an adverse action against an employee because an individual uses marijuana. An employer may only take an adverse action based on a positive drug test for marijuana if certain conditions are met.
Testing for marijuana
An employer may not take action based on a positive drug test for recreational marijuana use unless:
- There is reasonable suspicion that an employee used marijuana while working,
- The employee is showing signs of intoxication from marijuana use,
- The test is done because of a work-related accident requiring investigation.
A drug test may be done randomly, as part of a pre-employment screening, or as part of regular screening of current employees to determine use during an employee’s work hours.
A drug test needs to include scientifically reliable objective testing methods and procedures. This includes testing of blood, urine, or saliva.
The law also requires a person certified as a Workplace Impairment Recognition Expert to conduct a physical examination to determine an employee’s state of impairment. However, as of August 19, 2021, this requirement has been temporarily waived as the state’s Police Training Commission develops standards for certification.
Federal contractors
If the state’s marijuana law would bring a provable adverse impact on an employer subject to the requirements of a federal contract, the employer may revise employee prohibitions to be consistent with federal law.
State
Contact
Department of Health, Medical Marijuana Program, www.state.nj.us/health/medicalmarijuana/
Regulations
Jake Honig Compassionate Use Medical Cannabis Act, Chapter 307, NJRS C 24:61-2