A. NJ Amends Its Medical Marijuana Law: Reasonable Accommodation May Be Required.
On July 2, 2019, amendments to the New Jersey Medical Marijuana Law were enacted affecting medical marijuana and the workplace, imposing new reasonable accommodation obligations. The Amendments took effect immediately and can be found here, so employers need to quickly take action.
It is believed that the Amendments are a result, at least in part, of the Appellate Division’s pre-Amendment decision in Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416 (App. Div. 2019), where the court reinstated a Complaint of discrimination dismissed by the trial court. Mr. Wild was in a car accident while working and was required by Carriage Funeral Holdings to take a drug test. Mr. Wild was terminated after testing positive for marijuana, notwithstanding the fact that he was using marijuana off-duty under the former Compassionate Use Act.
The former Compassionate Use Act focused primarily on the decriminalization of medical marijuana, providing an avenue for patients suffering from certain health conditions to use marijuana medicinally without risk of violating certain drug laws in New Jersey. The Act did not impose any obligations on employers, expressly stating that employers were not required to “accommodate the medical use of marijuana in any workplace.” 1
The Appellate Division disagreed with the trial court, reinstating the Complaint, providing that even though the former Compassionate Use Act did not require an employer’s accommodation of medical marijuana, the New Jersey Law Against Discrimination does, especially since Mr. Wild sought an accommodation to use medical marijuana off-site, during off-work hours and not while in the workplace. 2
Replacing the former provision which did not require employers to accommodate medical marijuana, the Amendment now specifically prohibits taking “adverse employment action” against an employee solely because of medical marijuana use; however, the employee must be properly registered with New Jersey’s Cannabis Regulatory Commission to enjoy this protection. “Adverse employment action” is defined under the Amendments and includes what has now become typical negative personnel decisions, such as terminations, discipline, failure to hire, etc.
Under this new framework, employers cannot simply terminate or discipline an employee or refuse to hire an applicant solely due to a positive marijuana drug test. Employers must be careful to provide employees and job applicants with time to review the results and provide an explanation. Employers must provide this notice in writing with a notice of the employee’s right to provide a legitimate explanation for the positive test result, including providing the employer with a copy of his or her medical marijuana authorization card or other type of proof of registration with the Commission. The employee or job applicant then has three working days to respond. The employee also has a right to request a retest of the original sample at his or her own expense.
Nothing in the Amendments, however, permits any individual from using medical marijuana during work hours or on the premises of the workplace outside of regular working hours.
Finally, since marijuana remains unlawful under Federal Law, nothing in the Amendments requires employers to commit any acts which would cause the employer to violate Federal Law, such as the loss of a Federal contract or funding.
B. NYC Bans Pre-Employment Drug Screening for Marijuana and THC.
On May 10, 2019, New York City enacted into law a bill making pre-employment drug testing for marijuana or tetrahydrocannabinol (commonly referred to as “THC”) an unlawful discriminatory practice, subject to some limited exceptions. Stated another way, the new law (known as Local Law 91 of 2019) prohibits employers from requiring prospective employees to submit to a marijuana or THC drug test as a condition of employment. This new law is widely considered the first of its kind and will take effect on May 10, 2020.
Local Law 91 explicitly provides for limited exceptions to the new ban on pre-employment drug screening, including carve-outs for certain safety and security sensitive jobs, as well as jobs connected to federal or state contracts/grants. Specifically, the new law will not apply to persons applying to work:
- As police officers or peace officers;
- In any position requiring compliance with section 3321 of the New York City building code or section 220-h of the labor law;
- In any position requiring a commercial driver’s license;
- In any position requiring the supervision or care of children, medical patients or vulnerable persons as defined in paragraph 15 of section 488 of the social services law; or
- In any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by: (i) the commissioner of citywide administrative services for the classified service of the City of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.
In addition, Local Law 91 will also not apply to drug testing required by:
- Any regulation promulgated by the federal department of transportation that requires testing of a prospective employee in accordance with 49 CFR 40 or any rule promulgated by the departments of transportation of this state or city adopting such regulation for purposes of enforcing the requirements of that regulation with respect to intrastate commerce;
- Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;
- Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or
- Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.
The New York City Commission on Human Rights will be promulgating rules regarding the implementation of this new law.
The Bottom Line: Employers in New Jersey and New York City must make it a priority to revise their drug testing policies. In New Jersey, since the Amendments take immediate effect, employers must act now to include the two-step notice requirements described above in their policies. In addition, policies prohibiting drugs and alcohol in the workplace should also be revised to include provisions regarding disclosure and accommodation of any prescriptive medications (including medical marijuana) which could affect an employee’s ability to safely perform his or her job duties. Finally, while the NYC ban does not take immediate effect, employers must stop all drug testing of job applicants for marijuana and THC for positions not covered under the above exceptions by absolutely no later than May 10, 2020. Please let us know if you have any questions or if we can be of assistance.
1 Section 16 of P.L.2009, c.307 (C.24:6I-14) was amended to remove this requirement.
2 New Jersey’s Supreme Court granted certification on July 9, 2019 and the matter is now before the Supreme Court on appeal. See Wild v. Carriage Funeral Holdings, 2019 N.J. LEXIS 926 (July 9, 2019).