Jake Honig Compassionate Use Medical Cannabis Act
Although federal law currently prohibits the use of marijuana, New Jersey permits the use of marijuana for medical purposes. Individuals can be prescribed marijuana to treat a debilitating medical condition, including:
- seizure disorder, including epilepsy;
- intractable skeletal muscular spasticity;
- 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;
- 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%
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.
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 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
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:
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.
- physical dexterity,
- 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.
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.
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.
Model Drug Testing Policy
Any employee may be required to submit a urine and/or blood sample for testing for illegal drugs or alcohol in any of the following circumstances:
1. When a supervisor or managerial employee observes that the conduct, reactions, job performance, work habits, physical symptoms, or appearance of the employee are indicative of the use or being under the influence of illegal drugs or alcohol while on the premises or during working hours.
2. When a supervisor or managerial employee receives information from a source deemed credible that an employee used or is under the influence of illegal drugs or alcohol while on the premises or during working hours or immediately before reporting to work.
3. When an employee is involved in an accident or incident during working hours which caused or contributed to substantial injury to person or property (or had the potential for doing so), or where there is evidence that the accident may have resulted, in whole or part, from the use of illegal drugs or alcohol.
All persons shall have the opportunity, before testing, to list all prescription and nonprescription drugs they are using or have used in the past 30 days and to explain the circumstances surrounding the use of such drugs. All records containing medical information will be maintained in accordance with applicable law.
Testing Positive for Marijuana
Marijuana is an illegal drug under federal and state law. If an employee tests positive for marijuana, the employee shall have an opportunity to present a legitimate medical explanation for the positive test and submit information to explain the positive test result, or may request a confirmatory retest of the original sample at the employee own expense. As part of an employee’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.
N.J. Medical Marijuana Update Webinar – 2019