Medical Marijuana Discrimination in The Workplace: What You Need to Know if You Work in New Jersey
While, at the conclusion of the 2019 legislative session, New Jersey failed to legalize (i.e. decriminalize) the recreational use of marijuana, and federal law still designates marijuana as an illegal drug (regardless of whether it is legal at the state level for medical reasons), medical marijuana is legal throughout the state of New Jersey. In fact, not only is medical marijuana legal to use in New Jersey, but, according to a recent Appellate Division decision, employees can sue employers for employment discrimination under New Jersey law if they discriminate against them for using medically-prescribed marijuana to treat a condition or disability outside of the workplace.
New Jersey Law Against Discrimination (NJLAD) and New Jersey Compassionate Use Medical Marijuana Act (the “Act”)
The New Jersey Law Against Discrimination (NJLAD) requires employers to make accommodations for employees who have disabilities, while the New Jersey Compassionate Use Medical Marijuana Act (the “Act”) allows New Jersey residents who are suffering from certain illnesses to use and possess medical marijuana as long as they have a doctor’s recommendation.
The two laws interact with each other when it comes to medical marijuana in that while the Act does not require employers to accommodate the use of medical marijuana in the workplace, according to the recent New Jersey Appellate Division decision, employers are still accountable under NJLAD, which means that employees can pursue claims against employers for failing to accommodate their use of medical marijuana outside of the workplace if they successfully plead that they have a disability or their employer perceived that they were disabled; they remained qualified to perform the essential functions of the job and was performing at a level that met the employer’s expectations; they were subject to an adverse employment action due to their disability or their perceived disability; and the employer thereafter sought a similarly qualified individual.
In other words, employers must make a reasonable determination as to whether these medical marijuana patients are under the influence at work and evaluate their actual conduct while on the job as opposed to simply firing them for testing positive for marijuana via a drug test. Thus, in light of this decision, it is important for employers to keep in mind that relying on drug tests for marijuana is complicated, as these tests do not test for impairment in the workplace, given that the presence of marijuana can stay in the system and cause someone with a valid medical marijuana license to test positive even if that medical marijuana was used outside of the workplace and is not necessarily causing impairment in the workplace.
As in the case, this also places medical providers in a precarious situation, as, if a medical marijuana patient goes to a doctor or hospital for a test, as ordered by an employer, testing could place the physician in an illegal situation because it could yield positive results due to how long marijuana stays in someone’s system.
What Does This Mean Regarding What Employers Can and Cannot Do?
While the employer involved in this decision has appealed the decision in this case to the state Supreme Court, depending upon the Court’s decision to review/uphold/etc. the Appellate Division ’s decision, there is no question that there is a significant amount of confusion regarding what employers can and cannot do when it comes to employees who rely on medical marijuana to treat their medical conditions.
As a result, there is a significant amount of ‘gray area’ when it comes to employers taking disciplinary action against employees in terms of ensuring that they are in compliance with state law. Employers should consult with experienced counsel before taking any disciplinary action. Employees should also seek out counsel if they have concerns and questions about their own employment rights. Employers should stay abreast of emerging legal trends and review employment policies with the assistance of experienced legal counsel.
Keep in mind that courts in New Jersey have also ordered employers to allow for employees who were injured on the job and rely on medical marijuana to cover them in workers’ compensation cases and legislation protecting workers from getting fired based on being medical marijuana patients have been introduced in the New Jersey state legislature.