Proposed NJ Legislation Would Add Employment Protections for Medical Marijuana Users

Fox Rothschild LLP

New Jersey’s medical marijuana statute, the New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA), was enacted in 2010. To date, the statute does not include specific provisions requiring employers to accommodate an employee’s use of medical marijuana. But that may change if the legislature adopts amendments to the NJCUMMA which have been proposed in both the State Assembly and the State Senate, NJ A2482 [2016] and NJ S2161 [2016].

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These identical proposals would enact two major changes. First, before an employer could take an “adverse employment action” against an employee who is a lawful medical marijuana user on the basis of either (1) the employee’s status as a medical marijuana user or (2) a positive drug test, the employer would be required to show–by a preponderance of the evidence–that the employee’s use of medical marijuana, “has impaired the employee’s ability to perform the employee’s job responsibilities.” The legislation defines “adverse employment section” to include decisions regarding hiring, firing, and employee compensation.

Second, and relatedly, any employee or job applicant who is a medical marijuana user and tests positive under an employer-required drug test must be provided with an opportunity to show a “legitimate medical explanation for the positive test result,” and would be given three days to do so. Such an explanation would include a doctor’s note recommending the use of medical marijuana or an identification card showing the employee is a registered medical marijuana user.

These companion legislative proposals were introduced in February and May 2016, and both remain in the respective Health, Human Services, and Senior Services Committees of the NJ Assembly and Senate. However, if enacted, these amendments will (1) add an additional hurdle for employers when making employment decisions regarding employees who are lawful medical marijuana users, and (2) require New Jersey employers to reexamine their employee and/or pre-employment drug-testing policies.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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