Legal remedy

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Employers can’t take adverse actions against employees who use medical marijuana off the clock, a New Jersey appellate court ruled. Patients are protected under the New Jersey Law Against Discrimination, the court held, meaning employers must try to provide reasonable accommodations just as they would for other disabilities.

“Employers had hoped for a bright line that if someone tested positive for marijuana, they could be terminated,” said Sean Mack, partner at Pashman Stein Walder Hayden in Holmdel. “What this case says is if you’re using it for medical purposes, then employers in New Jersey can’t take that position.”

This decision is the first of its kind in New Jersey, after rulings in Rhode Island, Massachusetts, and Connecticut in 2017 and 2018 that cited anti-discrimination laws in finding that medical marijuana patients can’t be fired for failing drug tests.

In the New Jersey case, a trial judge ruled that the state’s Compassionate Use Medical Marijuana Act does not require employers to make accommodations on the job. The man at the center of the case, Justin Wild, tested positive for marijuana after a car accident and was subsequently fired from his director’s job at the Feeney Funeral Home in Ridgewood in 2016 even after disclosing that he was a cancer patient with a medical marijuana prescription.

Unlike New Jersey’s law, the medical marijuana statutes in other states “have specific carve-outs,” said Josh Bauchner, partner at Ansell Grimm & Aaron PC in Woodland Park, “and I think that’s what the trial court was looking for.”

He added: “What the NJLAD provided was affirmative protections for employees. [The appellate court] actually found that CUMMA and NJLAD were synergistic.”

Tony Russo, president of the Commerce and Industry Association of New Jersey in Rochelle Park, said his members aren’t interested in prohibiting the use of medical marijuana but are concerned about impairment.

“They would treat marijuana like they’ve treated other substances. If you’re impaired, and can’t do your job, and you either threaten your own safety or others, the employer is obligated to take action against you to prevent [anything] from happening,” Russo said.

“If an employee is not impaired at work and has a script for medical marijuana, I can tell you our employers will make an exception – because it’s the compassionate thing to do, but also because of the law,” he said.

Bob Considine, chief communications officer at the New Jersey Business & Industry Association, said it’s still important for employers to have the ability to maintain and enforce drug-free workplace policies.

“Other states that have legalized marijuana, including Colorado, California, and Massachusetts, allow employers to continue to enforce their drug-free workplace policies. It is critical that workplace safety, for both employers and other employees, is not jeopardized in New Jersey,” Considine said.

Legislative action

Two major statehouse players in the legislative debates over legal cannabis – Senate President Stephen Sweeney, D-3rd District, and Sen. Nicholas Scutari, D-22nd District – said that even with the court ruling, lawmakers still have to strike a balance between the rights of employers and patients.

“I’m dealing with this in my real-world job, where people have gotten medical cards, are consuming it legally, but our employers are saying ‘no, you’re not allowed to have it in your system’,” Sweeney told NJBIZ.

“We’re doing the best we can in the legislation about it, and having employer protections … reasonable standards,” Scutari added.

Many businesses have been worried that if Murphy expands the medical marijuana program and the state legalizes recreational possession of up to one ounce of marijuana by adults 21 and older then employees might show up to work under the influence.

Under Senate Bill 10 employers would be unable to dismiss workers simply for testing positive for marijuana or their participation on the medical program.

“Nothing in this section 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,” the bill reads.

Dara Servis, co-founder and executive director of the New Jersey Cannabis Industry Association, cited jobs that require a commercial driver’s license – virtually any job dealing with transportation, because those are governed at the federal level where marijuana is still illegal.

Still, the ruling was a step forward for the industry, as well as the rights of patients, and if need be, “clean-up” legislation could be approved down the road if any issues are identified with the first version of the measures that Murphy signs.

“This is extremely beneficial and positive in terms of moving the ball forward,” she said.

Advice for patients, employers

Employers can still take action against employees who are impaired at work, but determining impairment can be tricky.

“It’s the same problem that cops have when engaging in a DUI stop, because cannabis can stay in your system for 30 days or longer,” said Bauchner.

Tests to determine impairment are unreliable because THC blood concentration depends on many variables, according to a 2018 research paper published in the journal Trends in Molecular Medicine. Factors include how the cannabis was consumed, and because tolerance builds with frequent use, how often the person ingested, vaped or smoked it.

“If you really want to be a billionaire, don’t get into cannabis,” Bauchner said. “Invent a roadside cannabis test that can test impairment.”

Pashman Stein’s Mack advises clients who are medical marijuana patients on a case-by-case basis whether or not to tell their employer upfront about their prescription based on what their job functions are and what sort of testing their employer typically administers.Bauchner takes a slightly different approach, advising medical marijuana patient clients to disclose and share their card with their employer “to nip it in the bud.”

For employers who are suspicious of employee impairment at work, Bauchner advises calling legal counsel.

“It’ll require some conversations with a lawyer, and maybe some direct testing, and certainly some investigation. [For] a kneejerk reaction of termination, you’ll be liable for adverse employment action, from reassignments all the way up to termination.”

As far as Wild’s case goes, the appellate decision revived his case. Now his employer can present a defense and make arguments that he wasn’t terminated him because of his disability, but because of legitimate concerns.