A Capehart Scatchard Blog

Will Medical Marijuana Users Soon Have Legal Protections in the New Jersey Workplace?

By on April 25, 2018 in Other with 0 Comments

Get ready! Medical marijuana users in New Jersey may soon have new protections in the workplace.  Currently in New Jersey, employers have no strict obligation to accommodate medical marijuana users and employers may lawfully terminate an employee who fails a drug test, even if the use is medicinal.  Despite the current view in New Jersey, it seems that the tides are starting to change. For instance, Pennsylvania’s new medical marijuana law prohibits discrimination against an employee or prospective employee because he/she has a prescription for medical marijuana. The Pennsylvania law is silent as to whether or not a positive drug test can be the basis for termination in Pennsylvania.

New Jersey Governor Phil Murphy has also started to expand access to medical marijuana.  In an Executive Order in January 2018 Murphy called for a review of the State’s medical marijuana law and called for existing barriers to be eliminated for access to marijuana for conditions that are treatable by marijuana.  More recently, in March 2018, the New Jersey Governor increased the number of qualifying ailments for medical marijuana eligibility.  This list of qualifying ailments now includes broad categories such as chronic pain and anxiety.

Along with the legislative changes expanding eligibility for medical marijuana on the East Coast, a recent court opinion from Massachusetts, Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456, 78 N.E.3d 37 (2017), has employers wondering if sometime soon they are going to be required to accommodate medical marijuana users in the workplace.  In Barbuto, an employee sued her former employer after the employer terminated her because she tested positive for marijuana on a drug test. The employee claimed that she was wrongfully terminated because she was lawfully taking medicinal marijuana to treat her Crohn’s disease and that she was discriminated against due to her disability. The employer responded by stating that the company followed federal law, not state law and therefore, the employee’s termination was lawful. The Court rejected the employer’s argument and ruled that the plaintiff could sue for disability discrimination. The Court stated that the company must engage in the interactive process before deciding that accommodating medical marijuana would be an undue hardship.  The employer’s claim that it was following federal law was found to be irrelevant due to lack of consequences under the federal law to the employer if the company accommodates a medical marijuana user.

Even though Barbuto only applies in Massachusetts, it is worth reviewing because it is possible that it may become the basis for courts in other states to allow disability discrimination claims based upon medicinal marijuana to go forward. Moreover, this case may lead to new legislation in other states, including New Jersey, which could set forth new requirements for employers when deciding whether or not to accommodate an employee who lawfully receives medical marijuana.  Most recently Barrett v. Robert Half Corp., No. 15-6245, 2017 U.S. Dist. LEXIS 219116 (D.N.J. Feb. 21, 2017) a New Jersey employee tried to make a similar claim as the employee in Barbuto (handicap discrimination) but his complaint was dismissed because he never requested an accommodation from his employer. The New Jersey Court never reached the question of whether or not an appropriate accommodation may be allowing medical marijuana use outside of the workplace.

What does this mean to you?

Employers must pay attention and keep watching for changes in this area of the law. One possibility that employers may want to explore is excluding marijuana from the list of drugs that are tested for on company drug tests. This may not be possible for certain employers with safety-sensitive positions and certain government contractors, but others may want to begin thinking about this in order to avoid disability discrimination claims.

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