Supplementing the Pink Slip for a Green Stamp of Approval – Rising Trends of New Employment Protections for Registered Cannabis Users

 

 

Early this month, New Jersey enacted new workplace protections for authorized medical cannabis users

Under the new regulations, employers are prohibited from taking an adverse employment action against an existing or prospective employee on the basis of the person’s status as a registered qualified user of medical cannabis.  Under the recent amendment to the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”), “adverse employment action” is defined as “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.” Any employee or applicant, who is registered and qualified under New Jersey’s medical marijuana program and tests positive for cannabis, is required to receive a written notice by its employer offering the employee or applicant the right to (i) state a “legitimate medical explanation” for the positive test result, which may include authorized use issued by a health care practitioner, or (ii) request a retest of the sample within three days of receiving such notice. Further, the amendment’s notable silence on an employer’s obligation to accommodate an employee’s use of medical marijuana has been addressed by the recent decision by the New Jersey Appellate Court. In Wild v. Carriage Funeral Holdings, Inc., Docket No. A-3072-17T3 (N.J. App. Div. March 27, 2019), the court ruled that medical cannabis users may be entitled to reasonable accommodation under the New Jersey Law Against Discrimination Act.

New Jersey’s new employment protections came soon after a development by Nevada to enact Assembly Bill No. 132 (“AB132”), effective January 1, 2020. AB132 prohibits employers from denying employment to a prospective job applicant as a result of testing positive for marijuana on a pre-employment drug test.  However, the law provides certain carve outs for select employment positions where the safety of others may be particularly at risk, such as positions which require motor vehicle operation, firefighters or emergency medical technicians.

Nevada and New Jersey’s recent enactments follow suit of twelve other states that provided protections for employees and applications who use medical marijuana, including Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma and Rhode Island.

These advancement illustrates the urgency of all employers, not just those performing cannabis-related business, to become aware of cannabis regulations in the states in which they operate. Some considerations employers should consider include:

  • Becoming apprised of the medical marijuana laws in each states in which an employer operates and training human resource and managerial staff accordingly.
  • Adopting protocols in compliance with employment protections provided by their states’ cannabis regulations, and especially in the case of multi-state operators, consider implementing a uniform approach that is applicable to the laws with more stringent requirements.
  • Ensuring that requisite personnel and human resource departments continually reviewing any new or amended regulations which may evolve in the states under which the employer operates.

If these trends are any indication, employers’ zero-tolerance drug policies may soon become a practice of the past across the country.