New Jersey Bill Could Strengthen Employment Protections for Medical Marijuana Patients

Quick Hits

• New Jersey Senate Bill S3452 aims to enhance employment protections for registered medical marijuana patients by preventing employers from taking adverse employment action against them based solely on their status as medical marijuana cardholders or their having tested positive for cannabis.
• If enacted as proposed, the bill would prevent an employer from taking adverse employment action against such an employee unless the employer can establish by a preponderance of the evidence that the lawful use of medical marijuana has impaired the employee’s ability to perform the employee’s job responsibilities.
• The legislation would permit an employer to treat an employee as impaired if the employee exhibits specific, articulable symptoms while working that diminish the ability to perform the duties of the employee’s position.

Introduced on February 9, 2026, Senate Bill (S) 3452 would strengthen employment protections for registered medical marijuana users in New Jersey. While the bill’s stated purpose is to reinforce the protections for medical marijuana users already in place under the Honig Act, the bill would seemingly expand those protections in two key ways: (1) S3452 would make it explicitly unlawful for an employer to take adverse employment action, based solely on a failed drug test, against an employee who is a registered medical marijuana patient; and (2) the bill would create a “preponderance of the evidence” standard by which the employer would have to establish that “the lawful use of medical cannabis has impaired the employee’s ability to perform the employee’s job responsibilities” before taking adverse employment action against the employee who is lawfully using marijuana for medicinal reasons.

New Jersey Marijuana Regulation

In July 2019, New Jersey enacted the Honig Act, which prohibits an employer from taking an adverse employment action, such as a discharge, against an employee who is a medical marijuana user if that adverse employment action is “based solely on the employee’s status” as a medical marijuana patient. Under the Honig Act, when an employee or job applicant tests positive for marijuana, an employer must provide the employee or applicant with written notice of the positive test result and allow the employee or applicant an opportunity to provide a “legitimate medical explanation for the positive test result,” which can include authorization for medical marijuana use by a health care practitioner, proof of registration for medical marijuana use, or both.

Notably, the Honig Act explicitly stated that it did not “restrict an employer’s ability 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.”

Subsequently, in February 2021, New Jersey legalized recreational marijuana use for individuals twenty-one years of age and older with the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). That law had implications for employers, prohibiting them from discriminating against employees based solely on the fact that the employees used marijuana recreationally.

Preponderance of the Evidence Standard

S2452 would make it unlawful for an employer “to take any adverse employment action against an employee who is a qualified registered patient using medical cannabis” based on the employee’s holding a medical marijuana registry identification card or having tested positive for “cannabis components or metabolites” unless “the employer establishes by a preponderance of the evidence that the lawful use of medical cannabis has impaired the employee’s ability to perform the employee’s job responsibilities.”

The bill states that when assessing impairment, an employer would be able to consider an employee’s ability to perform the job “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.” What that means remains uncertain at this time, but possibilities might include uncharacteristic lethargy or withdrawal from work during active work periods, difficulty expressing coherent thoughts, or a significant drop in productivity.

Under CREAMMA, employers are required to use a workplace impairment recognition expert (WIRE) to conduct a “physical evaluation” of an individual who is drug tested for marijuana. CREAMMA directed New Jersey’s Cannabis Regulatory Commission (CRC) to establish standards for a WIRE to meet the qualifications for “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.” However, to date, the CRC has not promulgated the requirements for a WIRE under CREAMMA.

Positive Drug Tests for Marijuana

S2452 reiterates what the Honig Act requires following a medical marijuana patient’s positive drug test. If an employee or job applicant receives a positive test result, an employer must “provide written notice” to the employee or applicant on the right to “explain” the result, and “offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result.”

After receiving notice, the employee or applicant would then have three working days “to submit information to the employer to explain the positive test result, or request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense.” The explanation of the positive result could include a health care practitioner’s recommendation for medical cannabis, a registry identification card, or both.

Drug-Free Workplace Policies

S2452 repeats the provision from the Honig Act that allows employers to prohibit or take adverse employment action for “the possession or use of intoxicating substances during work hours,” though it does not repeat or reiterate such provision from the Honig Act as applied to “the possession or use of intoxicating substances … on the premises of the workplace outside of work hours.” (Emphasis added.) It is believed that the latter provision from the Honig Act, allowing employers to prohibit the use or possession of marijuana “on the premises of the workplace outside of work hours,” would remain in effect if S2452 is enacted.

Next Steps

If enacted, S3452 would have significant implications for employers, particularly those wishing to maintain drug-free workplace policies, as it not only reinforces the nondiscrimination protections for medical marijuana users in the Honig Act, but arguably expands those protections by prohibiting the discharge of a registered medical marijuana user after a positive drug test for “cannabis components or metabolites,” unless the employer can establish impairment on the job by a “preponderance of evidence”—a legal standard typically used in civil cases.

Currently, the bill has only been introduced and remains under consideration. It appears that prior versions of the bill have not passed the New Jersey Legislature, and the chances of this bill passing are unclear at this time.

Ogletree Deakins’ Morristown office and Drug Testing Practice Group will continue to monitor developments and will provide updates on the Drug Testing, Employment Law, and New Jersey blogs as additional information becomes available.

Additional information on state and federal marijuana laws, as well as drug testing requirements, is available on the Ogletree Deakins Client Portal. As new laws are enacted, the Client Portal will provide updates on the New Jersey Medical Marijuana Law Summary, the New Jersey Recreational Marijuana Law Summary, the New Jersey Drug Testing Marijuana Law Summary, and the New Jersey Lawful Off-Duty Conduct Law Summary. Template policies and full law summaries are available for Premium and Advanced subscribers. Snapshots and updates are available for all registered client users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

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