Many states including New Jersey have legalized the use of medical marijuana. New Jersey’s Compassionate Use Medical Marijuana Act (NJCUMMA) was signed in 2010. The law explicitly states that employers are not required to accommodate a qualified patient’s use of medical marijuana in the workplace; however, two new bills may change that.
New Bills in NJ Legislature
Two new bills have been introduced in the New Jersey legislature that would create workplace protections for patients using medical marijuana, if they become law. They would amend the NJCUMMA to bar adverse employment actions against an employee because of either the employee’s status as a registry identification cardholder or a positive drug test of marijuana – unless it can be shown that the use of medical marijuana conflicts with the employee’s ability to perform his or her job as required. Both bills also require that after a positive test result, the employee or job applicant must be given written notice of their right to provide a legitimate medical explanation and then must be offered the opportunity to do so. The bills being considered are Assembly Bill 2482 and Senate Bill 2161.
Wrongful Termination?
Many states are considering similar legislation because several court cases have arisen involving claims of an employee’s wrongful discharge due to the use of medical marijuana. In New Jersey one such case was dismissed on procedural grounds so it remains unknown how the court would have ruled for the plaintiff who lost his job after a positive drug test. In another New Jersey case, the plaintiff brought a claim under the New Jersey Law Against Discrimination (NJLAD) alleging failure to accommodate, and disability discrimination. The employee advised his employer that he was licensed to use medical marijuana as part of his cancer treatment, but was terminated after a positive drug test for marijuana. The employer filed a motion to dismiss saying the employee never requested an accommodation and that the NJCUMMA does not mandate that medical marijuana users be accommodated by their employers, nor does it regulate private employment.
In courts across the country, similar cases have failed in the absence of specific anti-discrimination language covering medical marijuana use in the statues. The states that have already updated their statutes with anti-discrimination provisions are Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Nevada, Pennsylvania, and Rhode Island. With tri-state neighbors Delaware and Pennsylvania already in the lead, New Jersey’s legislation cannot be far behind.
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No matter what your legal needs are regarding employment matters, consultation with a skilled Cherry Hill employment lawyer from McOmber McOmber & Luber, P.C. will put your mind at ease knowing you have excellent and knowledgeable representation. Call us at 856-985-9800 or contact us online to schedule an appointment in our Red Bank or Marlton, New Jersey, offices. We proudly serve clients throughout New Jersey.