October 15, 2020

New Jersey Cannabis Insider: Clearing the Haze for NJ Employers as Recreational Cannabis Goes to Ballot and Medical Use Laws Evolve

With the express workplace protections afforded to medical cannabis patients under New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act (“CUMCA”), which was enacted on July 2, 2019, and recreational cannabis on the November 2020 ballot, employers will inevitably face cannabis in the workplace and need to be prepared.

It is particularly imperative that employers know their rights and obligations related to medical cannabis pursuant to CUMCA to ensure they are adequately protecting their businesses and protecting against allegations of disability discrimination. Specifically, pursuant to CUMCA, employers are expressly prohibited from taking an “adverse employment action” against an employee who is a registered qualifying medical cannabis patient based solely on the employee’s status as a registrant with the Cannabis Regulatory Commission. Moreover, employers with drug testing policies must now provide written notice and offer the employee or job applicant an opportunity to present a legitimate explanation for any positive drug test result, and an authorization for medical cannabis issued by a healthcare practitioner or a registry identification card is sufficient to provide such a satisfactory explanation. Pursuant to the New Jersey Law Against Discrimination, employees may also be entitled to a reasonable accommodation for off-duty medical cannabis use and may also be protected from adverse employment actions for such use.

However, nothing in CUMCA requires an employer to commit any act that would result in a violation of federal law (including the Drug-Free Workplace Act), that would result in a loss of licensing pursuant to federal law, or that would result in the loss of a federal contract or federal funding. There is also nothing preventing employers from prohibiting employees from possessing or using intoxicating substances during work hours or on work premises.

In light of CUMCA and with the potential for the legalization of recreational cannabis pursuant to the Marijuana Legalization Amendment, which, if passed, will likely result in an increase in the already significant portion of the population using cannabis for either medical or recreational purposes, employers need to be proactive and should do the following:

• Revisit their drug-related policies to ensure they are in compliance with CUMCA’s new drug-testing requirements.

• Consider modifying or eliminating drug screening for cannabis for positions that are not subject to federal laws mandating a drug free workplace or otherwise safety sensitive. Doing so may reduce the risk of inadvertent discrimination and also prevent employers from losing qualified applicants and employees solely because they test positive for cannabis.

• Consider training people to recognize when an employee is impaired at work as opposed to relying on drug screens if the employer is more concerned about employees showing up to work impaired (and decreasing productivity and increasing workplace safety concerns/liability), rather than employees’ off-duty cannabis use. This is because cannabis drug screens detect the presence of cannabis in the system and not present impairment.

• Consult with legal counsel whenever an employee requests an accommodation associated with medical cannabis and be prepared to engage in the interactive process, to accommodate an employee wherever possible, and to avoid any related adverse employment action.

• Review job descriptions to ensure appropriate positions are properly identifiable as safety-sensitive.

• Document performance issues and do so consistently and contemporaneously. Therefore, if someone who happens to be a medical cannabis cardholder is terminated for a legitimate, non-discriminatory reason, the employer has a defense to any subsequent allegation that the termination was discriminatory.

• Apply all policies and procedures consistently.

• Consult with legal counsel on the nuances of the changing landscape of the law, particularly if you are a multi-state employer as the laws in each state are drastically different.

With the continued evolution of laws governing medical and recreational cannabis, employers may need to adapt and conform to a new operational modality. These best practices can hopefully serve as a guidepost in that process.

This article was originally published in NJ Cannabis Insider's October 15, 2020 issue, which can be found here.