Bill Pending in New Jersey Legislature Would Protect Employment of Medical Marijuana Patients

plantNew Jersey is among the majority of the states in the U.S. in allowing, under the supervision of a doctor, the possession and use of marijuana for medical purposes. The New Jersey Compassionate Use Medical Marijuana Act (CUMA), N.J. Rev. Stat. § 24:6I-1 et seq., enacted in 2009, defines permissible uses for the drug, establishes prescription guidelines for doctors, and creates a registry for patients. Federal law, however, still classifies marijuana as a Schedule I controlled substance, meaning that as far as the federal government is concerned, marijuana has “no currently accepted medical use in treatment.” 21 U.S.C. §§ 812 (b)(1)(B), (c)(I)(c)(10). Possession of marijuana with a valid prescription could therefore still be illegal under federal law. In an employment context, medical marijuana use that is entirely legal in New Jersey could lead to problems. Neither federal nor New Jersey employment discrimination laws prohibit adverse employment actions based on lawful medical marijuana use, but a bill currently pending in the New Jersey Assembly intends to change that.

The New Jersey Legislature, in enacting CUMA, found that “[m]odern medical research has discovered a beneficial use for marijuana in treating…certain debilitating medical conditions,” regardless of what federal law says. N.J. Rev. Stat. § 24:6I-2(a). It also found that state law enforcement officials are not responsible for enforcing federal laws and that “[c]ompassion dictates that “medical marijuana patients should be “protect[ed] from arrest, prosecution, property forfeiture, and criminal and other penalties.” Id. at § 24:6I-2(e). The provisions of CUMA mainly deal with registration of patients and certification of doctors.

The statute currently places no obligations or restrictions on employers. Section 16 of CUMA specifically states that employers are not required “to accommodate the medical use of marijuana in any workplace.” Id. at § 24:6I-14. The New Jersey Law Against Discrimination (NJLAD) does not include medical marijuana use as a protected category. See N.J. Rev. Stat. § 10:5-12(a). While it does include disability as a category, this is not likely to offer much protection for medical marijuana users. Not all conditions for which medical marijuana may be prescribed would qualify as disabilities under the NJLAD. Even if the underlying condition did qualify as a disability, it is conceivable that an employer could justify taking an adverse action because the employee’s conduct violates federal law, instead of because of the disability. This is where the proposed bill comes in.

Assembly Bill 1838, introduced on January 9, 2018, would amend the provisions of § 16 of CUMA addressing employment. It would prohibit employers from taking any adverse action against an employee who uses medical marijuana in accordance with New Jersey law, with an important exception. If the employer can demonstrate by a preponderance of evidence that the employee’s lawful medical marijuana use impairs their ability to do their job, they can overcome the law’s prohibition. Employers that require drug testing from employees must give an employee who tests positive for marijuana an opportunity “to present a legitimate medical explanation for the positive test result.” A1838 § 2.

If you are involved in a dispute with an employer in New Jersey or New York, the Resnick Law Group’s employment discrimination lawyers are available to help you. You can contact us today at 973-781-1204, at 646-867-7997, or online to schedule a confidential consultation with a member of our team.

More Blog Posts:

New Jersey Lawsuits Allege Failure to Pay Overtime Wages, The New Jersey Employment Law Firm Blog, December 8, 2017

New York Court Rules on Overtime Pay for Home Care Workers, The New Jersey Employment Law Firm Blog, December 4, 2017

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