More than half of the states in the U.S., including New Jersey, allow the use of marijuana for certain medical purposes with a doctor’s prescription, but it remains a strictly controlled substance under federal law. This has raised questions about the rights of an employee who uses marijuana in accordance with a doctor’s instructions. Does an employer violate anti-discrimination laws if they terminate or otherwise discriminate against an employee solely because of a lawful medical marijuana prescription? New Jersey’s employment laws still offer little protection, but proposed legislation and court decisions in nearby states suggest that the legal landscape is changing.
The New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA), N.J. Rev. Stat. § 24:6I-1 et seq., became law in 2010. It defines an exception to the New Jersey criminal statutes dealing with the possession and use of marijuana. It is largely silent on the question of employment. New Jersey employers can cite several justifications for terminating employees who are known to use marijuana, even if only for medical purposes. Marijuana is still illegal under federal law, for example, and some employers may be obligated by federal laws or federal regulations to monitor employees’ drug use.
Most regulations requiring employers to drug-test their employees are based on safety concerns, along with an assumption that anyone using marijuana is abusing it. A worker who shows up to work high, endangering themselves and others, is not the same as a responsible medical marijuana patient. The law has not yet caught up to this distinction. A pair of bills pending in the New Jersey Legislature, A2482 and S2161, would amend the NJCUMMA to make it “unlawful to take any adverse employment action against an employee” with a valid medical marijuana prescription, unless the employer can show “by a preponderance of the evidence that the lawful use of medical marijuana has impaired the employee’s ability to perform [their] job responsibilities.”
New Jersey courts have only just begun to address this area of law. A plaintiff with a medical marijuana prescription for chronic pain recently claimed that his employer discriminated against him based on a disability, in violation of the New Jersey Law Against Discrimination, when it fired him for failing a drug test. The court dismissed the case solely on procedural grounds. Barrett v. Robert Half Corp., No. 2:15-cv-06245, order (D.N.J., Feb. 21, 2017). A motion to dismiss a similar case in federal court, on the grounds that the NJCUMMA does not affect private employers and is preempted by federal law, is still pending. Wild v. Carriage Funeral Holdings, No. 2:17-cv-01398, complaint (D.N.J., Feb. 28, 2017).
Courts in two states have recently ruled in favor of plaintiffs claiming disability discrimination based on medical marijuana prescriptions. The Superior Court of Rhode Island, in an opinion that makes extensive use of Beatles lyrics, found an “implied cause of action” for employment discrimination in the state’s medical marijuana statute. Callaghan v. Darlington Fabrics Corp., et al., C.A. No. PC-2014-5680, dec. at 33 (R.I. Super. Ct., May 23, 2017). The Massachusetts Supreme Judicial Court declined to find an implied cause of action in that state’s medical marijuana law, but it ruled that the plaintiff could sue for disability discrimination. Barbuto v. Advantage Sales & Marketing, No. SJC-12226, slip op. (Mass., Jul. 17, 2017).
If you need to speak to a disability discrimination attorney about a dispute in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at (646) 867-7997.
More Blog Posts:
New Jersey Department of Labor Issues Regulations Implementing “Ban the Box” Law, The New Jersey Employment Law Firm Blog, March 14, 2016
New Jersey Discrimination Lawsuit Tests Effect of Medical Marijuana Law on Employment Statutes, The New Jersey Employment Law Firm Blog, June 24, 2015
Question of Whether Employers Can Fire Employees for Lawful Marijuana Use to Go Before Colorado Supreme Court, The New Jersey Employment Law Firm Blog, May 13, 2014