The amended law, now known as the Jake Honig Compassionate Use Medical Cannabis Act, contains several new protections for employees such as prohibiting employers from taking any "adverse employment action" against an employee who is a "registered qualifying patient" based "solely on the employee's status as a registrant with the commission." This term is defined as someone who has been authorized by a health care provider for the medical use of cannabis and has registered with the state's Cannabis Regulatory Commission.

Additionally, the amendment affords employees and applicants the opportunity to present a "legitimate medical explanation" in the event of a positive drug test result. If an applicant or employee tests positive for marijuana, the employers must provide the applicant or employee with written notice of this right to explain the positive result. After receiving the written notice, the employee or applicant must be given at least three working days to provide information explaining the positive result. Examples of items that may be presented to explain a positive result include an authorization for medical cannabis issued by a health care practitioner and/or proof of registration with the Cannabis Regulatory Commission. An employee or applicant may alternately request a confirmatory retest at the individual's own expense within the same three-working-day period.

It is important to note that these amendments also include critical exceptions. One exception is that these amendments do not protect employees from adverse employment action when an employee is in possession of or uses intoxicating substances during work hours or at the workplace during non-working hours. Another exception stipulates that an employer is not required to commit any act that could cause the employer to violate federal law, potentially lose a license-related benefit pursuant to federal law or lose federal contracts or funding.

New Jersey employers are encouraged to review and update internal policies accordingly per these new amendments. Employers should also prepare the required written notice that must be issued in the event an employee or applicant tests positive for cannabis. Ultimately, New Jersey employers should consult with legal counsel to ensure compliance with these recent amendments.

Posted: August 23,2019

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