On July 2, 2019, New Jersey Governor Phil Murphy signed into law the Jake Honig Compassionate Use Medical Cannabis Act (the “Act”), which amends the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) to provide greater clarity on the legal protections for both employers and employees. CUMMA, which was signed into law on January 18th, 2010, legalized the use of medical marijuana for New Jersey residents suffering from a debilitating medical condition.

As originally drafted, CUMMA did not require an employer to accommodate the medical use of marijuana in the workplace. Notwithstanding this, the Plaintiff in Wild v. Carriage Funeral Holdings, Inc. (N.J. Super. Ct. App. Div. Mar. 27, 2019), brought suit against his employer alleging that he was terminated on the basis of his use of medical marijuana in violation of the New Jersey Law Against Discrimination (“LAD”). Although Plaintiff tested positive for marijuana after his employer required him to undergo a drug test, Plaintiff explained that he used medical marijuana as part of his cancer treatment. Nevertheless, defendant terminated plaintiff’s employment based on the positive drug test. Defendant moved to dismiss the case noting that CUMMA did not require an employer to accommodate a medical marijuana user. The trial court agreed and granted the motion to dismiss.

On appeal however, the appellate court found that CUMMA’s “refusal to require an employment accommodation for a medical marijuana user does not mean that [CUMMA] has immunized employers from obligations already imposed elsewhere.” Accordingly, the Court concluded, CUMMA “does not immunize what the New Jersey Law Against Discrimination prohibits.” The Court specifically noted that CUMMA neither created nor destroyed employment rights and “certainly expressed no intent to alter the [Law Against Discrimination].” For this reason, the Court reversed, holding that the plaintiff could proceed with his claim of discrimination under the LAD.

Acknowledging Wild, the recent amendment to CUMMA, effective immediately, prohibits employers from taking any adverse employment action against a person who is a “registered qualifying patient” based “solely on the employee’s status as a registrant with the [state’s Cannabis Regulatory Commission].” A registered qualifying patient is an individual who: (i) has been authorized by a health care provider for the medical use of cannabis; and (ii) has registered with the state’s Cannabis Regulatory Commission. For purposes of the Act, an adverse employment action includes “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.”

Importantly, however, the Act, provides that it does not restrict an employer’s ability to prohibit or take an adverse employment action for “the possession or use of intoxicating substances during work hours.” Likewise, the Act makes clear that it is not intended to “require an employer to commit any act that would cause the employer to be in violation of federal law, that would result in the loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.” This means that federal contractors and other employers subject to laws like the Drug-Free Workplace Act will not face conflicting requirements between the Act and federal law. Of course, however, federal law continues to restrict the sale and use of marijuana in all forms.

Finally, although it does not prohibit an employer from conducting drug tests, the Act does impose new obligations on employers when an employee tests positive for marijuana. In that case, an employer must provide the employee or applicant with written notice alerting the individual to: (i) the positive test result; (ii) the individual’s right to provide a “legitimate medical explanation for the positive test result” within three workdays; and (iii) the employee’s right to request a “confirmatory retest of the original sample at the employee’s or job applicant’s own expense.” An employee or applicant may then submit an authorization for medical marijuana issued by a healthcare practitioner, proof of registration with the Commission, or both, to explain a positive test result. Alternatively, the employee or applicant may, within the same three day period, request a confirmatory retest of the original sample at his/her expense.

Employers in New Jersey should review their policies and procedures to ensure compliance with the Act’s requirements.

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Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Tony S. Martinez Tony S. Martinez

Tony Seda Martinez is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations and Employment Litigation practice groups.

Tony advises clients on a range of labor and employment matters. As part of his employment law practice…

Tony Seda Martinez is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations and Employment Litigation practice groups.

Tony advises clients on a range of labor and employment matters. As part of his employment law practice, Tony has represented clients in lawsuits alleging breach of contract, discrimination, harassment, and retaliation before federal and state courts and administrative agencies. He also assists employers with complex investigations matters and provides day-to-day counseling on employment law matters. Tony focuses his labor practice on representing public and private employers in grievance arbitrations and collective bargaining negotiations. He counsels clients across a number of industries including financial services, health care, sports leagues, transportation, and media.

Tony earned his J.D. from Rutgers Law School in 2018 where he was a member of the Rutgers Law Review. From 2022 to 2023, Tony served as a judicial law clerk to the Honorable José R. Almonte in the District of New Jersey.