By: Ralph R. Smith, 3rd
New Jersey’s medical marijuana program went into effect in 2007. Since that time, more than 11,000 persons have been issued ID cards under The Compassionate Use Medical Marijuana Act (“Act’) permitting them to use medicinal marijuana and to obtain the drug at one of the state’s five (5) marijuana dispensaries.
One of the issues that has perplexed New Jersey employers since the time of the Act’s passage has been whether an employer can either fire, or refuse to hire, a medicinal marijuana user if the employer has a drug free workplace policy, or if hiring or continued employment would violate other commitments to provide a drug free workplace under related federal laws. This issue arises because the Act is silent as to whether medicinal marijuana users have job protection because of that status. While the Act states expressly that employers have no duty to accommodate the use of medical marijuana while on the job, the law also states very vaguely that users cannot be denied certain unspecified rights or privileges because of their user status. Because of this uncertainty, employees are now resorting to the courts to determine what their employment rights are under the Act, and New Jersey Courts are finally getting the chance to weigh in on this controversial issue.
In a recent decision issued by the New Jersey Federal Court in February, 2017, a wrongful discharge claim brought by a medicinal marijuana user was dismissed on the grounds that the complaint failed to state a legally cognizable claim under New Jersey state law. In Barrett v. Robert Half Corporation, Civil Action No. 15-6245 (CCC), plaintiff was an accountant who also was a medical marijuana user. He did so to relieve back pain suffered as a result of an auto accident. Plaintiff was tested for drug use as part of the employer’s testing program and was subsequently terminated. In filing his suit, the employee claimed that the New Jersey Law Against Discrimination was violated because the employer was notified that the plaintiff was in the medical marijuana program and therefore had a duty to accommodate the drug use as treatment for his back problem. The court held that merely notifying an employer about an employee’s participation in the state medical marijuana program does not constitute a request for accommodation of the underlying condition that allows for the medicinal use of marijuana. As a result, no accommodation duty was violated by the employer.
The Barrett case is one of a handful of cases that are now working their way through the New Jersey courts. As more decisions are handed down, employers should have a better idea of what their rights and duties are in terms of addressing medicinal marijuana issues in the workplace. As these cases are being processed through New Jersey’s courts, employers should also keep a close eye on what is similarly happening in the New Jersey legislature. Proposed legislation now pending before both the Senate and Assembly would make it unlawful for an employer to take any adverse employment action against any employee enrolled in the New Jersey Medical Marijuana program. Because of these continuing developments, employers facing issues with employee use of medical marijuana should seek sound legal advice whenever contemplating possible adverse employment action against such employees.
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