On July 2, 2019, Governor Phil Murphy signed the Jake Honig Compassionate Use Medical Cannabis Act (the “Act”), which amends the formerly known Compassionate Use of Medical Marijuana Act (“CUMMA”) and expands New Jersey’s medical cannabis program.  Employers should pay particular attention to this new development because the Act includes a non-discrimination provision to protect New Jersey medical cannabis users in the workplace.

As we previously blogged, the New Jersey Appellate Division recently afforded medical cannabis users, who suffer from adverse employment actions due to their lawful medical cannabis use, with the ability to pursue a claim under the Law Against Discrimination (“LAD”), despite the fact that CUMMA previously did not include any explicit employment protections. The Act has now codified various employment protections for medical cannabis users. Specifically, pursuant to the Act, employers cannot take an adverse employment action against an employee “based solely on the employee’s status” as a valid medical cannabis user.

The Act also confirms an employer’s right to maintain a drug testing program, but imposes several requirements upon the employer when dealing with a positive test result for cannabis. Specifically, an employer must provide written notice of the positive test result to the employee or job applicant and notify him/her of the opportunity to “present a legitimate medical explanation for the positive test result.” According to the Act, an employee or job applicant must be given at least three (3) working days after receiving the aforementioned written notice to submit information explaining the positive test result or request a retest of the original sample at the employee’s or job applicant’s expense. To explain a positive test result, the Act explicitly permits an employee or job applicant to submit proof of registration as a valid medical cannabis user with the State and/or a doctor’s authorization to use medical cannabis.

Notwithstanding the above provisions, the Act specifically allows employers to “prohibit, or take adverse employment action for, the possession or use of intoxicating substances during work hours or on the premises of the workplace outside of work hours[.]” Further, the Act states that it should not be construed to require an 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.”

Overall, New Jersey employers should review their workplace drug policies and drug testing programs/procedures to ensure compliance with the Act. Except for federal contractors, as noted above, employers should also refrain from making a hiring decision or taking any adverse employment action against an employee based solely upon their valid use of medical cannabis.

This is a reminder to all restaurant and hospitality operators that, commencing on July 1, 2019, the New York City Department of Health will officially ban food and drink products containing Cannabidiol (“CBD”). All products containing CBD must be returned to the supplier or discarded prior to the July 1st enforcement deadline.  Failure to comply may result in fines ranging from $200-$650, dependent upon the quantity seized.

Although efforts to legalize cannabis for adult recreational use failed to win majority support prior to the end of the legislative session, both the New York State Assembly and New York State Senate have approved a significant decriminalization bill.  The bill, which Governor Andrew Cuomo has said he will sign, generally (1) reduces penalties for small-scale cannabis possession and (2) provides for automatic expungement of certain low-level cannabis related criminal records. The bill includes the following key measures:

  • Possession of less than two ounces of cannabis will be classified as a violation. Under existing law, possession of between one and two ounces is classified as a misdemeanor.
  • Public use will be classified as a violation, rather than a misdemeanor as it is classified under existing law.
  • The fine for possession of less than one ounce will be capped at $50. The fine for possession of between one and two ounces will be capped at $200.
  • Imprisonment can no longer be imposed for possession of less than two ounces.
  • At the request of the defendant, the court in which that person was convicted must vacate a judgment of conviction and dismiss the charges relating to certain prior cannabis-related offenses, including convictions for possession of less than 25 grams and for public use.
  • Records of certain prior cannabis-related charges shall be automatically expunged, including convictions for possession of less than 25 grams and for public use.

As noted in our article dated May 23, 2019, New York law currently does not provide a mechanism for expungement of criminal records.  The new bill introduces a definition of “expungement” to the New York Criminal Procedure law, which generally provides that:  (1) any arrest, enforcement activity, prosecution and disposition in any New York State court will be deemed a “nullity” and the individual will be restored to the status occupied prior to the arrest, prosecution and/or disposition; (2) records of the arrest, prosecution and/or disposition shall be marked as “expunged” or destroyed; and (3) no individual shall be required to divulge information pertaining to an expunged proceeding.  Commentators have observed that the bill’s expungement provision will, in practice, mean that relevant convictions will no longer show up on criminal history searches.

New York State Assembly Majority Leader Crystal Peoples-Stokes announced on Tuesday that she is planning to introduce a bill later this week that would not only legalize adult cannabis use, but would also provide the ability for those previously convicted of low-level cannabis-related offenses to have their criminal records expunged.  Majority Leader Peoples-Stokes’ proposal goes a step further than legislation previously under consideration, which would provide only for the sealing of such records.  Expungement is also the position favored by New York Senate Majority Leader Andrea Stewart-Cousins, who stated at a press conference last week that she prefers expungement over sealing.

When a criminal record is expunged, it is essentially erased in the eyes of the law, making it as though the individual had never been accused of the crime in the first instance.  Expunged records should not generally appear in background checks, nor should there be a need to disclose the fact of the expunged arrest or conviction in connection with employment or educational applications.  At present, New York law does not provide a mechanism for expungement of criminal records, rendering Majority Leader Peoples Stokes’ proposal an innovative solution to the collateral consequences attendant to past, low-level cannabis convictions.

New York law does already allow for sealing of criminal records in certain cases.  When a criminal record is sealed, the record still exists, but access to it is tightly restricted.  Generally speaking, the only people who can access sealed records are the defendant and law enforcement agencies that have obtained a court order.  Like expunged arrests and convictions, sealed arrests and convictions should not appear in background checks.  Unlike expunged convictions, however, sealed convictions may still carry legal consequences in certain circumstances.  For example, sealed convictions may still be considered prior offenses for purposes of future arrests or convictions.  It should also be noted that sealing may often be a lengthier process than expungement.

Observers have noted that introduction of an expungement provision will likely set up a disagreement between the legislature and the office of Governor Andrew Cuomo.  The governor’s office previously argued that a provision allowing for expungement could only be implemented through an amendment to the state constitution, which could take several years.  The governor’s office has taken the position that implementation of a sealing provision, however, could be accomplished through the traditional legislative process.

Since the passage of the New York Compassionate Care Act (“CCA”) in July 2014 and the subsequent launch of the medical cannabis program in January 2016, New York employers have begun facing new legal challenges arising from the decriminalization of medical cannabis.  Specifically, employers need to understand their obligations (if any) to reasonably accommodate medical cannabis use and their rights to discipline employees for cannabis use.  With Governor Cuomo’s recent announcement that New York will seek to enact legislation legalizing the adult use of recreational cannabis (which we blogged about here) and New York City’s recently passed ban on pre-employment drug testing for cannabis and tetrahydrocannabinols (“THC”), employers must be vigilant to follow any new developments to ensure compliance with state and local law.

Despite any state legislation to the contrary, cannabis with THC levels in excess of 0.3% is classified as a Schedule I substance under federal law and therefore, any use of cannabis (medical and adult use alike) violates federal law.  Therefore, certified medical cannabis users do not receive any protections under the federal Americans with Disabilities Act.  Employers operating in states where medical cannabis has been legalized, however, need to understand their rights and obligations under their respective state laws.

The Application of the CCA to the New York State Workplace

Pursuant to the CCA, “[c]ertified patients . . . shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business . . . solely for the certified medical use or manufacture of marihuana, or for any other action or conduct in accordance with this title.”  N.Y. Pub. Health Law § 3369(1) (emphasis added).  As such, the CCA provides that a certified medical cannabis user cannot be subject to “disciplinary action” by an employer “solely” for the certified use of cannabis.

Additionally, the CCA explicitly contains a non-discrimination provision providing that “[b]eing a certified patient shall be deemed to be having a ‘disability’” under the New York Human Rights Law (“NYHRL”), which applies to all New York employers with four (4) or more employees.  N.Y. Pub. Health Law § 3369(2).  According to the NYHRL, employers cannot discriminate against employees on the basis of disability status.  Further, the NYHRL codifies that it is a discriminatory practice for an employer to refuse to provide reasonable accommodations to known disabilities of its employees unless the accommodations would fundamentally alter the nature of the business or cause an undue burden.  Accordingly, an employer may be subject to a discrimination claim if it takes an adverse employment action against an employee solely for the use of medical cannabis.  An employer may also face a failure to accommodate claim if it fails to reasonably accommodate a certified medical cannabis user.

Notably, however, the CCA codifies two exceptions to the non-discrimination provision: (1) employers are not prohibited from enforcing a policy that prohibits an employee from performing his or her job duties “while impaired by a controlled substance” and (2) no person or entity shall be required to violate federal law or take actions to cause it to lose a federal contract or funding.  As such, the first exception implies that an employer cannot discipline an employee for his or her use of medical cannabis outside of work.  While it is clear that an employer may enact and enforce a policy that prohibits the use of medical cannabis during the workday, the CCA’s failure to define “impaired” creates ambiguity as cannabis can have behavioral, mental, and physiological effects for up to twenty-four (24) hours after use.

Further, the lack of case law in New York also makes an employer’s obligations towards certified medical cannabis users under the CCA hazy.  In Taxi & Limousine Comm’n v. W.R., OATH Index No. 2503/17 (July 14, 2017), a taxi driver failed an annual drug test due to his status as a certified medical cannabis user.  Due to the failed drug test results, the Taxi & Limousine Commission instituted a fitness proceeding alleging that the taxi driver was unfit to retain his taxi license.  The administrative law judge (the “ALJ”) refused to find that the taxi driver was unfit because the positive drug test result did not arise from “illegal drug use” since the taxi driver had a medical cannabis certification.  The ALJ noted that the CCA provides that being a certified medical cannabis user is deemed to be a disability and that an employee may not be penalized in “any” manner or denied any right solely because of their lawful medical use of cannabis.

Additionally, in Gordon v. Consol. Edison, Inc., No. 152614/2017, 2018 WL 2560893 (Sup. Ct. N.Y. Cnty. May 29, 2018), the trial court denied the employer’s motion to dismiss a complaint asserting claims for disability discrimination and failure to accommodate based on the employee’s alleged disability status and her use of medical cannabis under the CCA.  In that case, the employee was terminated for failing a random drug test due to her alleged legal use of medical cannabis.  The employer asserted, in part, that the complaint should be dismissed because the employee was not a certified medical cannabis user protected by the CCA at the time of testing.  The court rejected this argument because it was unclear whether the employer knew that the employee received the cannabis registry card prior to her termination (which occurred three weeks after the drug test was administered).  Indeed, the court noted that the employer “may have” discriminated against the employee based on her disability and failed to accommodate her medical cannabis usage.

As illustrated in the cases above, the CCA’s non-discrimination provision can act as a shield for employees who are certified users of cannabis from being subjected to adverse employment actions.  At the same time, the CCA also allows employers to enact policies that forbid employees from being “impaired” while performing their job duties. Overall, the application of these two CCA provisions remains ambiguous due to the lack of case law.

On May 10, 2019, Int. 1445-A became law and will go into effect on May 10, 2020.  Under the new law, some New York City employers will be prohibited from requiring job applicants to submit to drug tests for cannabis and THC use.  Specifically, employers, labor organizations, and employment agencies (along with any agents of such entities) may not require an applicant to submit to a cannabis or THC drug test as a condition of employment.  Beginning on the effective date of this law, requiring applicants to undergo such tests will be considered an “unlawful discriminatory practice.”

Notably, however, there are several exceptions to this prohibition, which all relate to public safety. For example, the law does not apply to applicants applying for jobs in law enforcement, construction, or child or medical patient care. In addition, the law does not apply to applicants applying for any position requiring a commercial driver’s license or any position with the potential to significantly impact the health or safety of employees or members of the public as determined by the commissioner of citywide administrative services or the chairperson of the City Commission on Human Rights.  As such, these administrative agencies have the authority to create new exceptions to the law in the future.  Further, the prohibition on pre-employment cannabis and/or THC testing does not apply to applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses pre-employment drug testing of such applicants.

Employers should continue to follow any developments in the law and any new legislation that will be passed by New York State or New York City in the future.  Significantly, New York employers should be wary that they are still under an obligation to engage in the interactive process with their employees who are certified medical cannabis users to reasonably accommodate the employees’ underlying medical conditions.  Employers with any questions should consult counsel to ascertain their specific rights and obligations.

Recently, in Wild v. Carriage Funeral Holdings, Inc., Docket No. A-3072-17T3, 2019 WL 1371206 (App. Div. Mar. 27, 2019), the New Jersey Appellate Division reversed the trial court’s dismissal of a discrimination complaint based on the employee’s legal use of medical cannabis under New Jersey’s Compassionate Use of Medical Marijuana Act (“CUMMA”).  In so holding, the court noted that CUMMA “does not immunize what the [New Jersey Law Against Discrimination (“LAD”)] prohibits” and held that a disabled employee may sue his or her former employer for disability discrimination based on the employee’s use of medical cannabis.

As we previously blogged, the plaintiff in Wild was a funeral director and a cancer patient who lawfully used medical cannabis during non-working hours.  The employee was involved in an accident which occurred during the course of his employment through no fault of his own and no alleged connection to his medical cannabis usage.  Before returning to work from the accident, the employee took a drug test pursuant to his employer’s policy.  Before taking the test, the employee’s father notified his employer that employee had a valid medical cannabis ID card from the New Jersey Department of Health.  A day after the test was conducted, the employee had a discussion with his manager about his medical cannabis usage.  Several days after this discussion, the employer terminated the employee because he failed to disclose the use of the medication (which might adversely affect his ability to perform his job) in violation of the employer’s drug and alcohol policy.

The employee filed suit against his former employer for violations under LAD, including disability discrimination and failure to accommodate.  He alleged that he had a disability (cancer) and was legally treating that disability in compliance with CUMMA.  In granting the employer’s motion to dismiss, the trial court held that CUMMA does not contain employment-related protections for medical cannabis users and no accommodations are required to be made in the workplace.  In so holding, the trial court relied upon the provision in CUMMA stating that “nothing in this act shall be construed to require . . . any employer to accommodate the medical use of marijuana in any workplace.”  N.J.S.A. 24:6I-14 (emphasis added).

In reversing the trial court’s decision, the Appellate Division found that the employee sufficiently pled a prima facie case for disability discrimination. The court reasoned that while CUMMA does not impose a duty to accommodate a medical cannabis user that does not mean that a duty to accommodate does not exist under another statute (i.e., LAD).  Indeed, the court specifically noted that CUMMA does not impact any existing employment rights or alter any provision of LAD.  The court also explicitly noted that the employee did not allege that he sought a workplace accommodation for his medical cannabis use, but instead sought an accommodation for his off-site medical cannabis use during non-working hours.

Significantly, the Appellate Division failed to mention the August 2018 federal district court decision in Cotto v. Ardagh Glass Packing, Inc., Civil No. 18-1037 (RBK/AMD), 2018 WL 3814278 (D.N.J. Aug. 10, 2018).  In that case, the court held that an employer was not required to accommodate a fork lift driver’s medical cannabis use, despite the fact that the driver’s doctor gave him a note stating that he could operate machinery while using his prescription.  In rejecting the fork lift driver’s claims under LAD, the district court reasoned that nothing in LAD or CUMMA required an employer to accommodate the use of medical cannabis in the workplace.

While the employee in Wild may not be able to ultimately prove his claims against his former employer, this recent decision affords New Jersey medical cannabis users, who suffer from adverse employment actions due to their lawful medical cannabis use, with the ability to pursue LAD claims against employers.  Employers should continue to follow any developments in the law and review their current anti-discrimination and drug and alcohol policies.  Employers with any questions should consult counsel to ascertain their specific rights and obligations, especially in light of the Wild decision.

After months of uncertainty and delay, the Governor and state legislative leaders have reached an agreement on a package of bills to legalize the adult use and sale of cannabis, expand the medical marijuana program and reform the expungement process for prior cannabis convictions in the State of New Jersey.

On Monday, March 18, 2019, the Assembly Appropriations Committee and Senate Judiciary Committee will hold hearings on the foregoing bills which, as written, include the following provisions:

  • A flat tax of $42.00 per ounce, regardless of the price of cannabis. As a result, the higher the price per ounce the lower percentage tax rate and vice versa.
  • Allowing personal possession of up to one ounce of cannabis.
  • Formation of a New Jersey Cannabis Regulatory Commission (“CRC”) to establish rules, regulations and procedures for the New Jersey cannabis industry, issue licenses and investigate alleged violations of state laws and regulations. The CRC will also have oversight of the medical marijuana program that is currently under the supervision of the Department of Health. Once the new bill is signed into law, the CRC will have six months to issue new regulations to govern the adult use market in New Jersey.
  • The CRC will be comprised of five members, three appointed by the Governor and the remaining two appointed at the request of the Senate President and Assembly speaker. One commissioner would be a representative of a national social justice commission.
  • A licensed dispensary will be permitted to operate a cannabis consumption lounge subject to the approval of its local municipality.
  • Home delivery will be permitted by approved licensed dispensaries.
  • A fund will be established to offset some of the costs that local governments and State Police will incur in training officers as drug recognition experts who could determine whether a driver was operating a motor vehicle while impaired by administering a series of in field exams.
  • Most importantly, one of the bills includes an expedited process for expungement through the State Superior Court for past cannabis convictions.

Unlike most all of the other states that have legalized cannabis for adult use, home grown cannabis will remain illegal.

If the bills pass both committees, it is anticipated that they will be presented to the Assembly and Senate for vote as early as Monday March 25, but only if passage is assured according to legislative leaders.

On March 5, 2019, Scott Gottleib, the Commissioner of the Food and Drug Administrations (FDA) announced his resignation as of the end of March, 2019. This follows his recent statements as to the effect of the changes in law with respect to hemp under the 2018 Farm Bill (the “Farm Bill”). Under the Farm Bill, hemp, which is now defined as the plant Cannabis sativa L. and all derivatives of the hemp plant, with extremely low concentrations of THC (less than 0.3 percent on a dry weight basis) are no longer subject to the Controlled Substance Act (the “CSA”). In addition, it is now permissible to transport hemp across state lines. Although thought at first by many to allow the sale of cannabidiol (CBD) products across the United States, the Farm Bill preserved the authority of the FDA to regulate products containing CBD under the Food, Drug and Cosmetic Act (the “Act”).  On the same day that the Farm Bill was signed into law, Commissioner Gottleib reiterated that the Act allows the FDA to regulate all CBD products, whether or not the compound is derived from hemp, and that when these products are intended to be used for the diagnosis, cure, mitigation, treatment or prevention of disease, they are considered new drugs and it is a violation of law to market them as such if they have not gone through the FDA drug approval process. He also indicated that it remained unlawful under the Act to introduce into interstate commerce food or dietary supplements containing added THC or CBD.  Given that violations of the Act may result in monetary and criminal penalties, many entrepreneurs looking to enter the CBD market, along with those already in play, are grasping to understand the consequences of marketing and selling hemp derived CBD products nationwide.

Commissioner Gottleib did go on to acknowledge Congress’ clear interest in fostering the development of hemp products and to make CBD available outside of the pharmaceutical industry. Accordingly, he  announced plans to work on new rules to allow companies to produce consumable products containing CBD. The Commissioner stated that the FDA would kick off the rulemaking process in April by doing the following: (1) amassing a working group to examine the issues involved in regulating CBD and (2) holding a public meeting to investigate possible rulemaking that would allow CBD to be lawfully sold in food and supplements through a simpler review process than what comes along with being defined as a “drug” under the Act. The Commissioner also indicated that he was willing to work with Congress on a legislative solution if a rulemaking process was too burdensome for his agency.  The Commissioner’s statements signaled a clear commitment to address CBD regulation and institute a regulatory framework for the sale of hemp-derived CBD throughout the country.

With Commissioner Gottleib’s resignation, it remains to be seen whether his replacement will agree with his sentiment on creating new rules to establish a less burdensome regulatory pathway for CBD products, leaving a growing billion dollar industry with many questions.

Earlier this week, the New York City Department of Health and Mental Hygiene (the “Department”) issued a statement banning the addition of CBD, otherwise known as cannabidiol, to food and beverage items offered for sale across New York City. As CBD-infused products continue to gain widespread popularity, the Department’s enforcement efforts have left restaurant and business owners somewhat perplexed and in search of answers.

In apparent reliance on U.S. Food and Drug Administration (“FDA”) guidelines, the Department has prohibited New York City restaurants from “[adding] anything to food or drink that is not approved as safe to eat”, which the Department goes on to state includes CBD, a non-psychoactive chemical compound produced by the cannabis plant. Despite popular opinion regarding CBD and its curative impact on a wide range of conditions, the FDA maintains CBD as “unsafe for consumption” as a food and/or dietary supplement additive, based on the relative absence of substantiated scientific evidence.

While CBD derived from THC-producing cannabis plants remains classified as a Schedule I controlled substance under the Controlled Substances Act, hemp-derived CBD was de-scheduled as a controlled substance under the Agriculture Improvement Act of 2018, or the 2018 Farm Bill, signed into law on December 20, 2018. However, Congress explicitly preserved the FDA’s authority to regulate products containing cannabis and/or cannabis-derived compounds, regardless of derivation, under the Federal Food, Drug, and Cosmetic Act. As a result, it remains unlawful to introduce CBD-infused products into interstate commerce and to market CBD products as a dietary supplement and/or product offering therapeutic benefits, without requisite FDA approval.

As New Jersey remains in a holding pattern, the Empire State has made a revitalized push in the race toward legalization.  In his annual budget address last week, Governor Andrew Cuomo formally unveiled New York State’s plans for a “first-in-nation” comprehensive cannabis regulatory framework. Much like his colleague Governor Phil Murphy, Governor Cuomo is now calling for swift legislative action and expedited entry into a legal cannabis market estimated to generate up to $300 million in annual tax revenue for the State by the programs third year.

Governor Cuomo’s Fiscal Year 2020 Executive Budget Briefing (the “Budget”) proposes to enact the Cannabis Regulation and Taxation Act (the “Act”), aimed at regulating and controlling the manufacture, wholesale, retail production, distribution, transportation and sale of cannabis, cannabis related products, medicinal cannabis and hemp cannabis. Preliminary highlights of the proposed Act are as follows:

  • Establishment of a three-tier distribution model comprised of licensed producers, distributors and retailers, and imposition of a ban on ownership by producers of retail dispensaries
  • Creation of the Office of Cannabis Management to oversee administration of the Act and centralize all licensing, enforcement and economic development functions across the medical, adult-use and industrial cannabis markets
  • Three-tier taxation scheme at the cultivation and wholesale stages:
    • (1) Cultivation tax at a rate of $1 per dry weight gram of cannabis flower and $0.25 per dry weight gram of cannabis trim
    • (2) Wholesale tax imposed on the sale by wholesalers to retail dispensaries at a rate of 20% of the invoice price
    • (3) Wholesale tax imposed on the same sale at a rate of 2% of the invoice price, to be collected and held in trust for and on account of the county in which such retail dispensary is located
  • Establishment of Canopy Growth Corporation’s $100 million Hemp Industrial Park, headquartered in the Southern Tier, to include growing, processing, manufacturing and research facilities
  • Continued expansion of the current medical cannabis program and patient access
  • Establishment of restorative justice initiative, providing for review and sealing of cannabis convictions, elimination of collateral consequences of conviction (i.e., parole violations) and reinvestment in disproportionately impacted communities

Despite relatively broad strokes, the primary goals of the proposed Act are clear: to foster and protect public health, safety and welfare, encourage responsible, informed and carefully regulated production and use of cannabis, and to promote social justice and equity. Per Governor Cuomo’s Budget, tax revenue generated from the adult-use cannabis market will be deployed for various social and research-related causes, including research on cannabis uses and applications, small business development and loans, substance abuse, harm reduction and mental health treatment and prevention, and public health education and intervention. The Act also proposes to limit the number of producers and retail dispensaries to safeguard against “market collapse”, and encourage participation by underserved communities through social equity licensing opportunities, technical assistance, mentorship and access to capital.