Laws regarding medical–or even recreational–marijuana use are undergoing significant changes. Nearly half of the states in the U.S., including New Jersey, now allow marijuana use for at least some purposes. How this affects employees’ rights in New Jersey, however, remains unclear. The issue, which is far from resolved, pits individuals’ right to use marijuana against employers’ right to enforce anti-drug policies. A lawsuit filed last year in New Jersey, Davis v. New Jersey Transit Corp., No. L-001778-14, complaint (N.J. Super. Ct., Essex Co., Mar. 14, 2014), claims disability discrimination against a railroad employee with a valid medical marijuana prescription.
Marijuana remains a Schedule I controlled substance under federal law, 21 U.S.C. § 812(b)(1), and it is still generally illegal under New Jersey law, N.J. Rev. Stat. §§ 2C:35-10a(3)-(4). The New Jersey Compassionate Use Medical Marijuana Act, N.J. Rev. Stat. § 6I-1 et seq., which took effect in 2010, allows the medical use of marijuana under very strict limits. Rather than “legalizing” marijuana, the law creates an exception to state criminal law. N.J. Rev. Stat. § 2C:35-18. It provides that the lawful use of marijuana may not result in “civil or administrative penalt[ies],” N.J. Rev. Stat. § 24:6I-6b, but it does not specifically mention employment or disability protections.
The plaintiff in Davis worked as a procurement clerk for NJ Transit. His doctor gave him a prescription for medical marijuana to alleviate some of the symptoms of end-stage renal failure. He states that he notified his employer of the prescription, but was told that he had to submit to a drug test in December 2013. When the test was positive for marijuana, he was sent to a drug treatment program and lost his job. He filed suit for disability discrimination under the New Jersey Law Against Discrimination. N.J. Rev. Stat. § 10:5-12a. In August 2014, the court denied a motion to dismiss filed by the defendant. The case is still pending.
The defendant has argued, in part, that it must follow federal regulations from the Department of Transportation (DOT), the Federal Railroad Commission (FRC), and the Federal Transit Administration (FTA). FRC regulations prohibit any and all marijuana use by railroad employees, and they specifically exclude marijuana from the rule on prescription drug use. 49 C.F.R. §§ 219.101, 219.103. Employers that receive FTA funding are required to randomly test employees for marijuana and other drugs. They must also conduct drug tests during the hiring process, after an accident, on reasonable suspicion of drug use, and after an employee’s return to duty. 49 C.F.R. § 655.21. The DOT generally prohibits any consideration of medical marijuana prescriptions when conducting mandatory drug tests. 49 C.F.R. § 40.151(e).
Other states have tended to side with employers in disputes regarding medical marijuana. See, e.g., Ross v. RagingWire, 174 P.3d 200 (Cal. 2008). The issue continues to receive extensive scrutiny, however. The Colorado Supreme Court heard oral arguments in a similar case, Coats v. Dish Network, in September 2014, but it has yet to issue a ruling. Numerous other claims are arising around the country, including a complaint in Massachusetts by a woman who says she cleared her medical marijuana prescription with her employer but was fired anyway after a positive drug test.
If you need to speak to an employment discrimination attorney in New Jersey or New York, contact the Resnick Law Group through our website, at 973-781-1204, or at (646) 867-7997.
More Blog Posts:
EEOC Examines Risk of Discrimination in Wellness Programs Offered by Employers Under the Affordable Care Act, The New Jersey Employment Law Firm Blog, May 27, 2015
Wrongful Termination May Expose Employers to Defamation Claims, The New Jersey Employment Law Firm Blog, July 22, 2014
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