Marijuana at Work: Employer Resource

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Marijuana at work

Although federal law currently prohibits the use of marijuana, New Jersey authorizes recreational and medical use under two statues, the N.J. Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act and the  Jake Honig Compassionate Use Medical Cannabis Act. The statues co-exist in a complex legal framework for employers.

N.J. Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act

Relevant definitions

“Cannabis” means all parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds, except those containing resin extracted from the plant, which are cultivated and manufactured for use in cannabis products but shall not include the weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product.  “Cannabis” does not include: medical cannabis dispensed to registered qualifying patients pursuant to the “Jake Honig Compassionate Use Medical Cannabis Act” or hemp or a hemp product cultivated, handled, processed, transported, or sold pursuant to the “New Jersey Hemp Farming Act.”

“Cannabis item” means any usable cannabis, cannabis product, cannabis extract, and any other cannabis resin.   “Cannabis item” does not include: any form of medical cannabis dispensed to registered qualifying patients pursuant to the “Jake Honig Compassionate Use Medical Cannabis Act or hemp or a hemp product cultivated, handled, processed, transported, or sold pursuant to the  “New Jersey Hemp Farming Act.”

“Cannabis product" means a product containing usable cannabis,  extract, or any other cannabis resin and other ingredients intended for human consumption or use, including a product intended to be applied to the skin or hair, edible cannabis products, ointments, and tinctures. “Cannabis product” does not include: (1) usable cannabis by itself e.g. dried leaves and flowers of the female plant Cannabis sativa L. , and does not include the seedlings, seeds, stems, stalks, or roots of the plant ; or (2) cannabis extract by itself ; or (3) any other cannabis resin by itself.  

"Adverse employment action" means 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.

Job Protection

No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.  

However, an employer may require an employee to undergo a drug test and use the results of the drug test when determining the appropriate employment action concerning the employee, including, but not limited to dismissal, suspension, demotion, or other disciplinary action.

Permissible Drug Testing

An employer may require an employee to undergo a drug test upon reasonable suspicion of an employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities, or upon finding any observable signs of intoxication related to usage of a cannabis item or following a work-related accident subject to investigation by the employer.

A drug test may also be done randomly by the employer, or as part of a pre-employment screening, or regular screening of current employees to determine use during an employee’s prescribed work hours.  The drug test shall include scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva, and a physical evaluation in order to determine an employee’s state of impairment.  

The physical evaluation shall be conducted by an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof, related to the usage of a cannabis. The employer may use the results of the drug test when determining the appropriate employment action concerning the employee, including, but not limited to dismissal, suspension, demotion, or other disciplinary action.

Workplace Impairment Recognition Expert Certification

The Cannabis Regulatory Commission (Commission), in consultation with the Police Training Commission, shall prescribe standards in regulations for a Workplace Impairment Recognition Expert certification, to be issued to full- or part-time employees, or others contracted to perform services on behalf of an employer based on education and training in detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance, and for assisting in the investigation of workplace accidents.  

The Commission’s regulations shall also prescribe minimum curriculum courses of study for the certifications, as well as standards for the commission’s approval and continuation of approval of non-profit and for-profit programs, organizations, or schools and their instructors to offer courses of study

Any person who demonstrates to the commission’s satisfaction that the person has successfully completed a Drug Recognition Expert program provided by a Police Training Commission approved school, or another program or course conducted by any federal, State, or other public or private agency, the requirements of which are substantially equivalent to the requirements established by the commission may, at the discretion of the commission, be issued this certification, subject to subsequent continuation of certification approval by the Commission.

NOTE: The statute states the purpose of Drug Recognition Expert program is to better ensure the protections for prospective employees and employees against refusals to hire or employ, or against being discharged or having any other adverse action taken by an employer, while simultaneously supporting the authority of employers to require employees undergo drug tests, as well as employer efforts to maintain a drug- and alcohol-free workplace or other drug- or alcohol workplace policy. Pending regulations, it appears that employers can continue to implement policies including “reasonable suspicion” testing, although it is clear that given the job protections of the statute, training would be required.

Maintaining a drug and alcohol free workplace  

Nothing in the statute requires an employer to amend or repeal, or affect, restrict or preempt the rights and obligations of employers to maintain a drug- and alcohol-free workplace or require an employer to permit or accommodate the use, consumption, being under the influence, possession, transfer, display, transportation, sale, or growth of cannabis or cannabis items in the workplace, or to affect the ability of employers to have policies prohibiting use of cannabis items or intoxication by employees during work hours;

If an employer can demonstrate a  provable adverse impact subject to the requirements of a federal contract, then the employer may revise their employee prohibitions consistent with federal law, rules, and regulations.

Driving

Nothing in the statute is intended to allow driving under the influence of cannabis items or driving while impaired by cannabis items or to supersede laws related to driving under the influence of marijuana or cannabis items or driving while impaired by marijuana or cannabis items.

It is unlawful to consume a cannabis item while operating a motor vehicle or being a passenger in a motor vehicle while the motor vehicle is being operated.

Jake Honig Compassionate Use Medical Cannabis Act

Individuals can be prescribed marijuana to treat a debilitating medical condition, including:  

  • seizure disorder, including epilepsy;
  • intractable skeletal muscular spasticity;
  • glaucoma;
  • acquired immune deficiency syndrome, or cancer;
  • amyotrophic lateral sclerosis, multiple sclerosis, terminal cancer, muscular dystrophy, or inflammatory bowel disease, including Crohn’s disease;
  • terminal illness;
  • opioid use disorder;
  • migraine;
  • anxiety;
  • Post-Traumatic Stress Disorder (PTSD)
  • chronic pain of visceral origin;
  • Tourette’s Syndrome, and
  • any other medical condition or its treatment that is approved by the Department of Health.

Top Five Medical Conditions

  • Chronic pain due to musculoskeletal disorders – 25%
  • Anxiety 20%,
  • Intractable skeletal spasticity – 20%,
  • PTSD – 9%
  • Severe or chronic pain due to cancer or HIV - 7%

Eligibility

To be eligible for the New Jersey Medicinal Marijuana Program (MMP) individuals must:

  • Authorized for the medical use of marijuana by a health care practitioner (not limited to physicians),
  • pursuant to a bona fide practitioner-patient relationship (not limited by one-year timeframe), and
  • a New Jersey resident.

Individuals in the MMP are issued a patient card.  Cards issued by an out-of-state program are not recognized in the state.

While individuals holding a patent card my use marijuana for medical reasons, individuals may not

a.  operate, navigate, or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana; or
b.  smoke marijuana in a school bus or other form of public transportation, in a private vehicle unless the vehicle is not in operation, on any school grounds, in any correctional facility, at any public park or beach, at any recreation center, or in any place where smoking is prohibited.

In the Workplace

An employer need not accommodate the medical use of marijuana in any workplace.

Health Insurance

The law does not require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana.  

Workers’ Compensation Insurance

There is a trend in the workers’ compensation courts finding that claimants are entitled to marijuana coverage under their claim, although provider networks, pharmacy benefit programs, and direct medical provider contracts do not apply to medical marijuana. Workers’ compensation claimants who are authorized to use the drug must pay out of pocket and be reimbursed by the employer when ordered by a court.  At least one N.J. appellate court has ordered an employer to reimburse an employee.  Hager v. M&K Construction, A-0102-18T3 (App. Div. January 13, 2020).

Testing for Illegal Drugs in the Workplace

Department of Transportation’s Drug and Alcohol Testing Regulations

Marijuana remains classified as an illegal drug under the federal Controlled Substances Act.). Thus, the Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result. Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.”

Employers Generally

Employers may conduct pre-employment drug testing and during the course of employment. If an employee or job applicant tests positive for marijuana, the employer shall offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result, and shall provide written notice of the right to explain to the employee or job applicant.

Within three working days after receiving notice, the employee or job applicant may submit information to the employer to explain the positive test result, or may request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense.  As part of an employee’s or job applicant’s explanation for the positive test result, the employee or job applicant may present an authorization for medical marijuana issued by a health care practitioner, a registry identification card, or both.

Model Notice to Provide Explanation for a Positive Test Result

[Date]

Please take notice that a Laboratory Report dated ________, shows that you have tested positive for Marijuana Metabolites.

Attached is the Report.

Within three working days after receiving this notice you may:

1) submit information to [Name of Company] to explain the positive test result, or
2) request a confirmatory retest of the original sample at own expense.

As part of your explanation for the positive test result, may present an authorization for medical cannabis issued by a health care practitioner or a registry identification card.

Please be advised that such explanation or authorization is not a guarantee of an offer of employment or continued employment.

Information may be provided in a confidential manner to:

[Company Contact]

Unless an employer establishes by a preponderance of the evidence that the lawful use of medical marijuana has impaired an employee’s ability to perform the employee’s job responsibilities, it is unlawful to take any adverse employment action against an employee who is a qualified registered patient using medical marijuana  based on either: (1) the employee’s status as a registry identification cardholder; or (2) the employee’s positive drug test for marijuana components or metabolites.

“Adverse employment action” means refusing to hire or employ a qualified registered patient, barring or discharging a qualified registered patient from employment, requiring a qualified registered patient to retire from employment, or discriminating against a qualified registered patient in compensation or in any terms, conditions, or privileges of employment.

An employer may consider an employee’s ability to perform the employee’s job responsibilities to be impaired when the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.

Specific articulable symptoms while working that decrease or lesson the employee’s performance of duties or tasks of the employee’s job position.

  • speech,
  • physical dexterity,
  • agility,
  • coordination,
  • demeanor,
  • irrational or unusual behavior,
  • negligence or carelessness in operating equipment or machinery,
  • disregard for the safety of the employee or others, or
  • involvement in an accident or other carelessness that results in    an injury to the employee or others
  • significant deterioration in work performance, absenteeism, or
  • an individual’s appearance indicating substance abuse.

Adverse Action

Unless an employer establishes by a preponderance of the evidence that lawful use of medical marijuana has impaired the employee’s ability to perform the employee’s job responsibilities, it shall be unlawful to take any adverse employment action against an employee who is a registered qualifying patient using based on the employee’s status as a registry identification holder.

Typically, cannabis metabolites have an elimination half-life of 20 hours and could be stored in body fat and have an elimination half-life of 10-13 days. Thus, an employee who uses medical marijuana at home in the evening may test positive the next day but will most likely not evidence any impairment in the ability to perform the job.  It is unclear whether a positive test by itself, without any evidence of impairment, would support an adverse employment action. There is nothing in the law that provides an exception for safety-sensitive jobs.

Reasonable Accommodation

An employer is not required to accommodate medical marijuana use in the workplace, during work hours, or while operating, navigating or physically controlling a vehicle in the performance of job duties. However, state and federal law require employers to use their best efforts to provide a reasonable accommodation to qualified persons with disabilities unless it imposes an undue hardship.   As the individual holding a valid patient card may suffer from a disability, employers may likely need to make a good faith effort to provide a reasonable accommodation, unless it is an undue hardship to do so, i.e.: poses a substantial risk of harm or safety.  A medical opinion may be warranted.

In Wild v. Carriage Funeral Home, Inc., an employee used medical marijuana as part of his cancer treatment. After being involved in a vehicle accident while working, he informed both his doctor and his employer that he had been using medical marijuana outside of work. The employer later required him to submit to a drug test, which tested positive for marijuana. As a result the employee was fired. A lawsuit alleging that the employer failed to provide a reasonable accommodation by waiving the positive drug test followed.  
 
The Supreme Court of New Jersey found that the lawsuit could proceed observing that the employee met his burden by alleging that his employer was aware of his disability and need for treatment, and had discussed the need to take prescription medication. In short, the court’s holding indicates that an employee’s notification of lawful medical marijuana use to their employer may be sufficient to trigger the employer’s duty to engage in the interactive process regarding possible accommodations, such as not taking action based on a positive drug test result.

Substance Free Workplace

An employer may prohibit, or take adverse employment action for, the possession or use of intoxicating substances during work hours. Additionally, nothing in the law requires an employer to commit any act that would cause the employer to be in violation of federal law, that would result in a loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.

Drug and Alcohol Policy

Click here for model policy (EANJ Member's Only)