The New Jersey Supreme Court recently issued a significant decision in the area of cannabis law. In Hager v MK Construction, the New Jersey Supreme Court affirmed that medical cannabis prescriptions are lawful under workers compensation, but that buries the lede. The real impact of Hager is that the New Jersey Supreme Court addressed for the first time the friction between federal and New Jersey state cannabis law.
The employer in this case did not want to reimburse a worker for medical cannabis prescriptions for an injury that occurred on the job. MK Construction argued that the New Jersey Compassionate Use Act (the medical marijuana law in New Jersey) was preempted by the Federal Controlled Substances Act, setting up a showdown between state and federal law.
On February 22, 2021, Governor Philip Murphy signed into law a trio of bills that collectively legalize adult use of recreational cannabis in the State of New Jersey. The legalization of cannabis, more commonly referred to as marijuana, will have a significant impact on workplaces and institutions of higher education across the state of New Jersey. Employers should contact legal counsel for guidance on revising their workplace policies to comply with the new law and ensure a safe and healthy working environment.
The following are key points employers should consider to comply with the new Law.
Three months after New Jersey overwhelmingly voted to legalize recreational cannabis, Gov. Phil Murphy signed a set of bills on Monday that made New Jersey the 13th and latest state to end the prohibition of marijuana. The new laws allow adults over the age of 21 to possess up to six ounces of cannabis and will permit the production, distribution and sale of cannabis in New Jersey by licensed businesses.
There has been one thing missing since New Jersey citizens voted to legalize adult use recreational cannabis: a law signed by Governor Murphy. Since the November election, New Jersey lawmakers proposed and approved legislation that would formally legalize adult use recreational marijuana in New Jersey, but Governor Murphy has not signed the bill based on disagreements regarding penalties for underage cannabis users. The result: limbo.
In a significant step towards the legalization of recreational cannabis in the Garden State, the New Jersey state Assembly and Senate passed Bill S21 on Thursday, making New Jersey poised to become just the fourth state on the east coast to legalize recreational cannabis. The Bill establishes the proposed framework of the industry and is now awaiting the signature of Gov. Murphy.
Earlier this fall, voters overwhelmingly approved a constitutional amendment to legalize cannabis in New Jersey after the New Jersey legislature was unable to pass an earlier draft of the Bill.
On December 4, 2020, the House of Representatives voted 228-164 to pass a bill, the Marijuana Opportunity, Reinvestment, and Expungement Act, that decriminalizes cannabis at the federal level. Specifically, the bill removed cannabis from the Controlled Substances Act, and would require federal cannabis convictions to be expunged. The bill is not expected to gain traction in the Republican controlled Senate, as just five Republican representatives voted in favor of the bill. Nevertheless, this vote is the most significant federal action to legalize cannabis in the country’s history.
Last week, New Jersey citizens voted to legalize adult use recreational cannabis. The question on everyone’s mind is: what happens next?
On Friday, Senator Nick Scutari released a new bill that would establish the framework for legal cannabis in New Jersey. The bill is similar to the prior bills introduced by Sen. Scutari. The New Jersey legislature still has to review and pass the bill for signature by the Governor. Additionally, the Governor must finalize the New Jersey Cannabis Regulatory Commission to be the regulatory oversight body for cannabis in New Jersey. On Friday, the Governor made progress by making several top appointments to the Commission. Once finalized, the Cannabis Regulatory Commission will also have to promulgate regulations for the industry.
In the most significant decision to date in the medical marijuana context, the New Jersey Supreme Court recently confirmed that a plaintiff under the New Jersey Law Against Discrimination (“LAD”) can state a viable claim for discrimination related to lawful use of medical marijuana. On March 10, 2020, the Supreme Court in Wild v. Carriage Funeral Holdings, Inc. (A-91-18) affirmed the judgment of the New Jersey Appellate Division allowing a plaintiff’s LAD claim based on his allegation that he was terminated for lawful medical marijuana use to proceed to the merits.
In Wild, the plaintiff, a licensed funeral home director, alleged that he lawfully (and privately) used medical marijuana during non-work hours to treat his cancer. His employer learned that he was using medical marijuana and, as plaintiff alleges, terminated him without attempting to discuss an accommodation. The plaintiff filed a lawsuit alleging that his termination was unlawful disability discrimination under LAD. At the trial court level, the funeral home defendant filed a motion to dismiss, arguing that under the Compassionate Use Act (the statute allowing medical marijuana in New Jersey), N.J.S.A. 24:6I-14, employers were not required to accommodate an employee who used medical marijuana. The trial court agreed and dismissed the plaintiff’s LAD claim.
New Jersey’s efforts to legalize adult use recreational cannabis officially moved from legislative to electoral. Senator President Stephen Sweeney introduced a constitutional amendment regarding the legalization of adult use recreational cannabis that is expected to be on the ballot in the 2020 election.
If New Jersey voters approve of the amendment, it would take effect on January 1, 2021. The actual implementation of legalized adult use recreational cannabis, however, would take additional time. Similar to the anticipated process with respect legalization through legislation, this method would still require a state agency (the Cannabis Regulatory Commission) to be created, rules and regulations to be implemented and promulgated and license applications to be processed. In other states where this process has taken place, it took one to two years for dispensaries to officially open following the official legalization enactment.
On September 25, 2019, the U.S. House of Representatives passed H.R. 1595, the Secure and Fair Enforcement (SAFE) Banking Act. The legislation is intended to allow the cannabis industry to have access to financial services and to enhance public safety by reducing the industry’s reliance on cash. It provides a safe harbor for financial services companies, including banks, credit unions, and insurers, to serve cannabis-related businesses operating under state law without the threat of regulatory backlash or criminal prosecution.
The House voted 321 to 103 to pass the bill. The bill was supported in the House by 229 Democrats, 91 Republicans, and 1 Independent.