Marijuana in the Workplace

As both medical and recreational marijuana become more common in states across the nation, how marijuana in the workplace should be regulated has become a pressing question. While state laws may prohibit or limit the use of marijuana in the workplace, including that of medical marijuana, states must also comply with the American with Disabilities Act (ADA). Laws that discriminate against those with certain conditions or needs and do not make “reasonable accommodations” may be unlawful. If you have questions about the use of marijuana in the workplace in New Jersey, our experienced employment law attorneys at the offices of McOmber McOmber & Luber, P.C. can help.

 Federal Law: Marijuana, Drug Testing, and the ADA

Before looking at New Jersey’s laws, it is important to consider federal laws. While federal law prohibits the use of marijuana for any purpose, states have been given wide latitude in their regulation of the drug, with many states making the use of marijuana for recreational purposes, medical purposes, or both legal. The ability to legally use marijuana in the states where users live is a result of the federal government not enforcing federal law; in fact, in 2019, an amendment that would block the Department of Justice from interfering in state-approved cannabis programs was passed by the House of Representatives.

While marijuana may be prohibited at the federal level, federal authorities typically turn a blind eye to in-state marijuana use. The same is not true for the Americans with Disabilities Act (ADA).

Under the ADA, employers are neither required to drug test their employees nor prevented them from doing so. That being said, employers must comply with the ADA, which means that any drug testing that does occur should be pursued cautiously and lawfully, as someone protected under the ADA may indeed be using certain drugs for the treatment of a medical condition.

While the ADA does protect those with disabilities, allowing disabled individuals to use necessary drugs lawfully (i.e. with a prescription) and preventing an employer from discriminating against such an employee, the illegal use of drugs is not protected under the ADA. This is where the problem lies: If an employee has a prescription to use marijuana for a medical condition, can they be tested for marijuana at work and be terminated for such use?

New Jersey: Use of Marijuana in the Workplace and the ADA

The exact question posed above — whether or not an employee who is lawfully using marijuana for medical purposes per state laws can be terminated for the use of marijuana in the workplace, or if such termination is a violation of the ADA — has recently been asked by the Appellate Division court in New Jersey. The court decided in 2019 that an employer may have an obligation to reasonably accommodate an employee using medical marijuana.

The case was brought forth by a former Amazon employee who was terminated after testing positive for marijuana use in 2018. After testing positive, the employee provided Amazon with proof of the employee’s status in the state’s medical-marijuana program and further explained that the use of marijuana was for the treatment of anxiety and panic disorder. The employer further requested that Amazon provide reasonable accommodation for this disability.

Because the discrimination laws in New Jersey at the time that the employee requested reasonable accommodation did not clearly articulate whether or not reasonable accommodation had to be made for marijuana, Amazon terminated the employee.

The Jake Honing Compassionate Use Medical Cannabis Act

Signed into law in July of 2019, the Jake Honing Compassionate Use Medical Cannabis Act drastically reformed New Jersey’s medical marijuana program. Today, even if an employer is not sure whether or not they need to make reasonable accommodations under the ADA for an employee who is using medical marijuana, the employer will need to comply with the provisions of the Jake Honing Compassionate Use Medical Cannabis Act. Under the Act, it is unlawful for an employer to take any adverse action against an employee who is registered as a qualifying patient under the program based solely on the employee’s status in the program. The legislation continues to read that if the employer maintains a drug-testing program and an employee tests positive for marijuana use, the employer must provide the employee with a chance to give a reasonable explanation for the positive test result. This opportunity must be given to the employee in writing.

This part of the legislation means that an employer cannot discriminate against any employee by terminating them or otherwise penalizing them merely because they tested positive for marijuana use, so long as the employee is lawfully registered with the state medical marijuana program.

Note that the legislation also reads that nothing in the text of the law shall be deemed to “restrict an employer’s ability to prohibit, or take adverse employment action for,” the possession or use of intoxicating substances during work hours.” This provision makes it unclear whether or not an employee who uses marijuana at work for medical purposes will be protected from termination or adverse action.

Work With a Skilled New Jersey Employment Law Attorney

 The laws surrounding the use of medical marijuana in the workplace and how such use can be reconciled with the regulations of the ADA are still being developed. For employers and employees both, this can be a tricky area, and one was how to navigate the law is not clear. For employers, working with an experienced employment law attorney who is well-versed in the issue and who can assist in the development of lawful workplace policies regarding drug testing and adverse actions for employees who use marijuana is strongly recommended.

At the law office of McOmber McOmber & Luber, P.C., we represent both employers and employees in workplace disputes, including ADA disputes. If you have questions about your right to enforce rules against marijuana use in the workplace, or your right to use medical marijuana at work, call our law firm today for a consultation. Our employment lawyers will aggressively advocate for your best interests.

Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, our Newark office at 973-878-9040, or contact us at 888-396-0736 or online for a free consultation. We represent clients throughout New Jersey.