New Jersey’s marijuana legislation has been in a constant state of flux for more than a year. Prior to July 2, 2019, New Jersey’s medical marijuana law allowed individuals who received a valid recommendation from a physician to purchase, possess and consume cannabis, but failed to provide any protection for medical marijuana users in the employment arena. In fact, the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:61-1, et seq. (CUMMA), specifically did not require an employer to accommodate a medical marijuana user. That all changed on July 2, 2019, when Governor Phil Murphy signed a bill that expanded the State’s medical marijuana program in significant ways.
Specific to employment matters, the expansion now provides job protection to employees that use medical marijuana, and states in pertinent part:
Unless an employer establishes by a preponderance of the evidence that the lawful use of medical marijuana has impaired the employee’s ability to perform the employee’s job responsibilities, it shall be unlawful to take any adverse employment action against an employee who is a qualified registered patient using medical marijuana consistent with the provisions of the law based on either (1) the employee’s status as a registry identification cardholder; or (2) the employee’s positive drug test for marijuana components or metabolites.
In effect, the law provides a safe haven for an employee who is a registered user and who uses cannabis while off-duty in order to address a qualifying medical condition. The legislation falls in line with the recent holding in Wild v. Carriage Funeral Holdings, Inc.
So what does this mean for employers? The expanded legislation and the changing case law leave no question that employers will have to revisit their employee handbooks and drug policies. Zero tolerance drug policies will no longer be acceptable and will expose New Jersey employers to liability under the new law and certainly under the New Jersey Law Against Discrimination.
Leslie A. Parikh, Esq., is a partner with Gebhardt & Kiefer, PC. She practices primarily in the areas of employment law, civil rights litigation, municipal law, insurance defense, and the representation of public entities in both State and Federal Court. Contact Ms. Parikh at 908-735-5161 or via email.
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