How the New Medical Marijuana Law Impacts New Jersey Employers

July 31, 2019

Fred Amicucci, Director. DataScreening

On July 7, 2019 Governor Murphy Signed A-20, the Jake Konig Compassionate Use Medical Marijuana Act, into Law

This is the new comprehensive medical marijuana law for New Jersey and includes a section focusing on NJ employers.  With this new law, individuals will be able to lawfully use medical marijuana products in New Jersey. Note however that marijuana is still illegal under federal law.

Certain medical marijuana products do not create intoxication (for instance medical cannabis [cannabidiol {CBD}]) or a “high” in an individual, but the individual may still test positive for marijuana in an employer drug test. This new law addresses this situation as follows:

How the new law impacts Employers and Drug Screening procedures

This new law also renames the “Compassionate Use Medical Marijuana Act,” P.L.2009, c.307 (C.24:6I-1 et al.), to the “Jake Honig Compassionate Use Medical Cannabis Act,” establishing a new Cannabis Regulatory Commission (CRC) to oversee the medical cannabis program; revising the requirements to authorize a patient for medical cannabis; revising the permit and operational requirements for alternative treatment centers (ATCs), including establishing discrete cultivator, manufacturer, and dispensary permits; creating a new clinical registrant permit; authorizing delivery of medical cannabis, and establishing additional protections for registry cardholders.

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9. (New section) a. It shall be unlawful to take 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.

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b. (1) If an employer has a drug testing policy and an employee or job applicant tests positive for cannabis, the employer shall 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.

(2) Within three working days after receiving notice pursuant to paragraph (1) of this subsection, the employee or job applicant may submit information to the employer to explain the positive test result, or may request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense.  As part of an employee’s or job applicant’s explanation for the positive test result, the employee or job applicant may present an authorization for medical cannabis issued by a health care practitioner, proof of registration with the commission, or both.

c. Nothing in this section shall be deemed to:

(1) 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 the premises of the workplace outside of work hours; or

(2) require an employer to commit any act that would cause the employer to be in violation of federal law, that would result in a loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.

d. No employer shall be penalized or denied any benefit under State law solely on the basis of employing a person who is registered with the commission.

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22. Section 16 of P.L.2009, c.307 (C.24:6I-14) is amended to read as follows:

16. Nothing in [this act] P.L.2009, c.307 (C.24:6I-1 et al.) or P.L.2015, c.158 (C.18A:40-12.22 et al.) shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of

[marijuana, or an employer to accommodate the medical use of marijuana in any
workplace]

cannabis, or to restrict or otherwise affect the distribution, sale, prescribing, and dispensing of any product that has been approved for marketing as a prescription drug or device by the federal Food and Drug Administration.

(cf: P.L.2009, c.307, s.16)

Process for Employers under the New Marijuana Law

All employers that already have a drug screening policy in place and an employee or applicant tests positive for marijuana, the employer must follow the below steps:  

1.The applicant or employee must be given the chance to give a medical explanation for the result;

2. The applicant or employee must be given written notice of their right to be able to explain the result.

3. After the applicant or employee receives the written notice, they have 3 working days to submit information to either explain the result of the drug test or to request a retest of the sample at their own expense.

  • It is unlawful for a NJ employer to take adverse employment action solely because it learned that an employee is a registered qualified patient using medical marijuana.
  • If an employer does have a drug testing policy and an employee (or job applicant) tests positive for cannabis, the employer now has to modify its handling of this situation by providing a written notice informing the individual that the individual has the opportunity to present a legitimate medical explanation for the positive test result or may request a confirmatory retest of the original sample at the individual’s expense. The legitimate medical explanation may include an authorization for medical cannabis issued by a health care practitioner, proof of registration with the Cannabis Regulatory Commission (CRC), or both.

In other words, employers with drug testing policies now have to treat a positive cannabis result in the same way they treat other positive results that may result from prescribed medications.

The law, however, reconfirmed the employers’ rights to prohibit or take adverse action for the possession or use of intoxicating substance during work hours or on the premises of the workplace outside of work hours. Furthermore, it protects employers who need to comply with federal law (i.e., federal contract requirements, etc.).

Employers will need professional advice from its legal counsel and professional resources to develop new forms and training as it applies to drug testing and staff supervision.



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