• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

McOmber McOmber & Luber

Business & Employment Lawyers Red Bank & Marlton New Jersey

(732) 842-6500
  •   Free Consultation
  • Home
  • Firm Overview
    • History of the Firm
  • Practice Areas
    • Business Law
      • Business Law Practice Areas

      • Business Formation
      • Buy-Sell Agreements
      • Commercial Disputes
      • Dispute Resolution and Arbitration
      • Shareholder Disputes
    • Collections
      • Collections Practice Areas

      • Commercial Collections
      • Debt Collections
      • Judgment Enforcement
      • Personal Guarantee
      • Promissory Notes
    • Employment Contracts
      • Employment Contacts Practice Areas

      • Confidentiality and Non-Disclosure Agreements
      • Executive Agreements
      • Non-Compete Agreements
      • Severance Packages
    • Employment Discrimination
      • Employment Discrimination Practice Areas

      • Age Discrimination
      • Americans with Disabilities ACT (ADA)
      • Disability Discrimination
      • Gender Discrimination
      • HIV or Aids Discrimination
      • Hostile Work Environment
      • LGBT Discrimination in the Workplace
      • Pregnancy Discrimination
      • Racial Discrimination
      • Religious Discrimination in the Workplace
      • Sexual Orientation Discrimination in the Workplace
      • Wage Discrimination
      • EEOC Claims
    • Employment Law
      • Employment Law Practice Areas

      • At-Will Employment
      • EEOC Claims
      • FMLA
      • New Jersey Division on Civil Rights
      • New Jersey Family Leave Act
      • New Jersey Law Against Discrimination
      • New Jersey Paid Sick Leave
      • Reduction in Force
      • Unemployment Compensation Appeals
      • Wrongful Termination
      • Misclassified Employees
      • Medical Leave Benefits in New Jersey
      • Work From Home Laws
    • Litigation
      • Litigation Practice Areas

      • Civil Litigation
      • Contract Litigation
    • Class Actions
      • Class Action Practice Areas

      • Equal Pay Act
      • Overtime Pay
      • Tip Skimming
      • Misclassified Employees
    • Personal Injury
      • Personal Injury Practice Areas

      • Nursing Home Negligence
      • Product Liability
      • Uber Assault, Fraud, and Harassment
    • Real Estate
      • Real Estate Practice Areas

      • Land Use, Planning and Zoning
    • Sexual Harassment
      • Sexual Harassment Practice Areas

      • Hostile Work Environment Sexual Harassment
      • Housekeeper Sexual Harassment
      • LGBT Sexual Harassment
      • Medical Professional Abuse
      • Quid Pro Quo Sexual Harassment
      • Sexual Abuse
      • Sexual Harassment in Doctors’ Offices and Healthcare
      • Sexual Harassment in Nursing
      • Sexual Harassment of Administrative Assistants
      • Sexual Harassment of Housekeeping and Janitorial Workers
      • Sexual Harassment Retaliation
      • Sexual Harassment in Dental Offices
      • Sexual Harassment in the Entertainment Industry
      • Sexual Harassment in Bars and Restaurants
    • Wage & Hour
      • Wage & Hour Practice Areas

      • Equal Pay Act
      • Overtime Pay
      • Tip Skimming
      • Tipped Employees
    • Government Fraud/False Claims Act
      • False Claims Act Practice Areas

      • Qui Tam Action
      • Prevailing Wage & False Claims Act
    • Whistleblowing & Retaliation
      • Whistleblowing & Retaliation Practice Areas

      • Conscientious Employee Protection Act (CEPA)
      • Whistleblower
      • Workplace Retaliation
      • Consumer Fraud Attorney
    • Other Legal Services
      • Other Legal Services

      • Estate Law
  • Our Successes
    • Client Reviews
    • Verdicts & Settlements
    • Representative Clients
  • Team
  • FAQs
  • News
  • Office Locations
  • Contact Us
Medical Marijuana Discrimination | Header Image | McOmber McOmber & Luber

Medical Marijuana Discrimination

Medical Marijuana Discrimination

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.

Medical Marijuana Discrimination FAQs

  • What Is the Jake Honing Compassionate Use Medical Cannabis Act?

    Read More
  • Can My Employer Drug Test Me?

    Maybe. In Hennesey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992) the New Jersey Supreme Court concluded that random drug testing does not violate public policy or an employee’s right to privacy when there is a concern over safety.

  • Will I Be Eligible for Worker’s Compensation if I Use Medical Marijuana?

    Maybe.  New Jersey’s Workers Compensation Act covers personal injuries and death coming out of and in the course of employment.  However, the Act contains specific exceptions including for when intoxication and or the unlawful use of controlled dangerous substances are the cause of the injury or death.  If your workplace injury was caused by your intoxication, you may be denied workers compensation.

  • Can My Employer Terminate Me For Using Medical Marijuana Outside of Work?

    No. The Compassionate Use Medical Marijuana Act (CUMMA) states it is unlawful to take any adverse employment action against an employee “solely on the employee’s status as a registrant” for medical marijuana. N.J.S.A.  24:6I-6.1.  Again, that does not mean an employer must allow an employee to use marijuana in the workplace or if the employee has a position that is safety sensitive. Wild v. Carriage Funeral Home, 241 N.J. 285 (2020).

  • Can My Employer Terminate Me For Using Recreational Marijuana Outside Work Hours?

    No. The proposed legislation from 2019 states that an employer cannot refuse to hire or employ any person or take an adverse action against any employee “because that person does or does not smoke or use marijuana items.”  The one exception is if the “employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.”

  • Can my Employer Institute a Zero-Tolerance Policy Against Drugs Now that Marijuana Is Legal in New Jersey?

Primary Sidebar

Related Practice Areas

  • Employment Discrimination Attorney
  • Americans with Disabilities ACT (ADA)
  • Age Discrimination Lawyers
  • Ancestry Discrimination
  • Asexual Discrimination
  • Bisexual Discrimination
  • Chronic Illness Workplace Discrimination
  • Color Discrimination
  • Disability Discrimination Lawyer
  • Discrimination Against Immigrants in the Workplace
  • Employment Discrimination Retaliation
  • Gay Discrimination Lawyers
  • Gender Discrimination Lawyer
  • Gender Identity Discrimination
  • Genetic Discrimination
  • Hairstyle Discrimination
  • Hiring Discrimination
  • HIV or Aids Discrimination
  • Hostile Work Environment Lawyer
  • Job Discrimination
  • Language Discrimination
  • Lesbian Discrimination in the Workplace
  • LGBT Discrimination in the Workplace
  • Marital Status Discrimination
  • Maternity Leave Discrimination
  • Medical Discrimination
  • Mental Illness Discrimination
  • Military Employment Discrimination
  • Name Discrimination in Hiring
  • National Origin Discrimination
  • Pansexual Discrimination
  • Pay Discrimination
  • Political Discrimination
  • Pregnancy Discrimination Lawyer
  • Pumping & Breastfeeding in the Workplace Discrimination
  • Racial Discrimination Attorneys
  • Religious Discrimination in the Workplace
  • Sex Discrimination
  • Sexual Orientation Discrimination in the Workplace
  • Transgender Discrimination in the Workplace
  • Unintentional Discrimination
  • Wage Discrimination

Medical Marijuana Discrimination Blogs

  • Marijuana In the Workplace: Things to Know

Red Bank Office

  • 54 Shrewsbury Avenue, Red Bank, NJ 07701
    732.842.6500
    732.530.8545
    info@njlegal.com

Marlton Office

  • 39 E. Main Street, Marlton, NJ 08053
    856.985.9800
    856.263.2450
    info@njlegal.com

Newark Office

  • 60 Park Place Suite 307, Newark, NJ 07102
    973.878.9040
    973.310.5216
    info@njlegal.com

Office Locations

Red Bank Office

  • 54 Shrewsbury Avenue, Red Bank, NJ 07701
  • 732.842.6500

Marlton Office

  • 39 E. Main Street, Marlton, NJ 08053
  • 856.985.9800

Newark Office

  • 60 Park Place Suite 307, Newark, NJ 07102
  • 973.878.9040

Footer

McOmber McOmber & Luber

McOmber McOmber & Luber is focused on delivering exceptional representation and responsive client service. We tailor innovative and cost-effective solutions for each matter we handle.

Quick Links

  • Home
  • Firm Overview
  • Practice Areas
  • Team
  • Office Locations
  • FAQ
  • Press
  • Our Successes
  • Contact Us
  • Awards & Honors
  • Civil Certified Attorney
  • Careers
  • Blog
  • Client Reviews

Practice Areas

  • Business Law
  • Collections
  • Employment Contracts
  • Employment Discrimination
  • Employment Law
  • Litigation
  • Personal Injury
  • Real Estate
  • Sexual Harassment
  • Wage & Hour Attorney
  • Whistleblowing & Retaliation
  • Other Legal Services

Copyright © 2023 · McOmber McOmber & Luber, P.C. All Rights Reserved

  • Privacy Policy
  • Site Map
  • Log In

No aspect of this advertisement has been approved by the Supreme Court of New Jersey.

This website’s information does not, and is not intended to, constitute legal advice or form an attorney-client relationship. All content is for general information and may not constitute the most up-to-date legal information. You should consult with an attorney for advice on specific legal problems. Read the full Disclaimer here. Your Privacy Choices Notice at Collection

Free Consultation