Fuzzy green lines

Employers and the courts are wrestling with the implications of an expanding medical cannabis program

Gabrielle Saulsbery//March 2, 2020//

Fuzzy green lines

Employers and the courts are wrestling with the implications of an expanding medical cannabis program

Gabrielle Saulsbery//March 2, 2020//

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When an Amazon employee in Edison with a medical cannabis card tried to inform his employer that he would fail a drug test due to his prescription, the company allegedly had him take it anyway and fired him for failing it, according to a suit filed in November. A funeral director in Linden was allegedly terminated in 2016 after his employer learned he was prescribed medical cannabis to treat cancer symptoms.

The rapid growth of New Jersey’s medical cannabis patient population, which the Department of Health currently counts at 70,201, has presented employers with a new reality: some of their employees might be consuming cannabis, and they’re allowed to by law. But what’s an employer to do when they worry their employee might be impaired at work?

The Jake Honig Law, which took effect on July 2, doesn’t restrict an employer’s right to prohibit the use of intoxicating substances, legal or illegal, during work hours or on the premises of the workplace. What it does require of employers is that, employees or applicants who test positive for cannabis have three days to provide a legitimate medical explanation for the result. The employee or applicant can also request the sample be retested at his or her own expense before the employer reacts to it.

“It’s clear that if someone tests positive in New Jersey and they are a cardholder, they have the right to offer an explanation, but the statute, as written, does not require the employer to accept it,” explained Adam Gersh, cannabis law attorney and member of Flaster Greenberg PC’s labor and employment and litigation practice groups.

In the case of Wild v. Carriage Funeral Holdings, the New Jersey Supreme Court must decide if the New Jersey Law Against Discrimination’s requirement that employers reasonably accommodate disabilities applies to an employee’s use of legally prescribed medical cannabis, as an appellate court ruled in March, 2019.

And in the Amazon case, the courts must decide if it was unfair for Amazon to fire an employee for using medical cannabis and being upfront about it. At the time of his firing, the Jake Honig law had not been filed, so the requirement to give an employee three days to explain a positive test wasn’t written into law.

Fruqan Mouzon

“The law itself is basically an interpretation of what already existed. What is a disability, what is a necessary accommodation, what are the rights of the employer, all that existed before,” said Fruqan Mouzon, who runs the cannabis law practice at McElroy, Deutsch, Mulvaney & Carpenter LLP. “Without the law, it’s not clear, but that that doesn’t mean the courts won’t come to the same conclusion. Obviously, if it happened after this law was passed in July this would be a lot easier [to decide].”

Employers must now evaluate their written policies and the practices they follow, said Matthew Collins, chair of the labor and employment law practice at Brach Eichler LLC. It’s imperative that the staff administering HR policies are aware of current updates to the law, and even some larger companies aren’t getting that right yet, he explained.

Matthew Collins

“Jake Honig also doesn’t create a bright line as whether or not you can terminate. What it creates a bright line for is that before you terminate, there’s certain steps you have to file first as the employer. The requirements are to give notice that they have tested positive for cannabis and to afford them the opportunity to say they’re a lawful user of med marijuana,” Collins said. “What the law prohibits is you can’t be terminated based on your status as a participant in the medical marijuana program. Again, it’s not a bright line.”

While the law doesn’t permit an employee to possess or be under the influence of any substance, including medical cannabis, while at work, the challenge that many employers will face is related to the lack of scientific advancement in testing: Impairment due to cannabis consumption can’t be tested like alcohol intoxication can. Unlike law enforcement, most workplaces aren’t trained in field sobriety.

“Is someone impaired or were they just sleepy from being up all night?” said Gersh. “You can discipline them for being impaired, whether they’re just sleepy or using illegal or legal drugs. It’s messier than an objective test.”

If an employer does want to dismiss or terminate an employee for impairment, Gersh recommends providing articulable reasons for suspicion of impairment. This might include that the employee couldn’t follow instructions, couldn’t keep their eyes open, or any physical or intellectual deficiencies, and they should be noted to protect the employer from a claim that he or she is being unfair with that interpretation.

“Employers, frankly, they don’t like that. They prefer to have a test than to be responsible in those ways,” Gersh said. “What I say to employers who are panicked from that is that it’s really not that different from what you’ve had to do for years. You’re always on the lookout for impairment. Maybe you would give them a blood-alcohol test, but you’re also sending someone home if they appeared to be impaired or smell like alcohol. The same with legal drugs. If someone is impaired at work, you still have to be on top of that. It’s not as scary or different as it seems.”

New Jersey employers can’t terminate an employee for testing positive for THC if they’re a medical marijuana patient, a court found. – AARON HOUSTON

Employers should also take a step back to consider whether it really matters to them what an employee does in his or her free time, Gersh suggested.

“You have to ask yourself, from a practical perspective, do you really want to do random drug screening for cannabis when people aren’t impaired? In other words, is it important for you to catch people who are using cannabis in a way that’s not an impairment to their work? Some employers do, some don’t,” he said.

For some employers, he expects suspicion-based testing to continue. If an employee appears to be intoxicated and a drug test is administered, though it can’t determine current intoxication, a positive test for cannabis would support their suspicion that they were impaired at work.

Gersh recommends that employees exercise caution with discussing their medical condition with others at work to avoid making themselves a target if the use of cannabis is prohibited.

“At the same time, if there is testing, it’s important to educate the employer that they’re using medical marijuana as a part of approved treatment and that it’s legal and they’re not impaired at work. That’s probably the best you can do. Employers still currently have the right to say testing positive is the right to warrant dismissal or discipline. The best you can do is give the employer a reasonable basis not to do that,” Gersh said.

McElroy Deutsch’s Mouzon thinks disclosure is valuable.

“I think there’s nothing wrong with telling your employer, if there’s an anti-drug policy, that there’s a medical condition and you have a card and here’s the card. If there’s an accommodation to be made, then you can hash it out right then,” Mouzon said.

Collins said employees should have at least a basic understanding of their rights as medical cannabis patients, and that if adverse action is taken against them which they believe is tied to medical cannabis usage, to raise it directly with their employer or seek legal counsel.

If employees who use medical cannabis are protected under NJLAD, employers can’t use ignorance of the law as a defense, Collins explained.

“They need to make sure they have the internal resources to make sure these issues are being properly addressed or that they seek outside legal advice to make sure they’re operating within the parameters of the law,” Collins said.

For employers looking to stay out of the position that Amazon and Carriage Funeral Holdings have found themselves in, Mouzon said, “You can never stop someone from suing you, but you can prevent it by having clear policies in line with the bylines of NJLAD and the Jake Honig law.”