Richard M. Schall
February 26, 2019
Unfortunately, under the current state of the law in New Jersey, the short answer to the question posed above is, in all likelihood, “Yes.” Even if you have received a prescription from your doctor to obtain medical marijuana and obtained a registration card from the State allowing you to purchase it and use it, a New Jersey federal court found in the case of Cotto v. Ardagh Packing – decided in August, 2018 — that your employer could still fire you if a drug test revealed the presence of the marijuana in your system.
While we think this New Jersey federal court “got it wrong” and misinterpreted the New Jersey statute allowing for the use of medical marijuana, and while we also think that if this issue were to be instead decided by the New Jersey Supreme Court, the outcome would be very different (and much more favorable), the fact remains that, as the law has now been interpreted, your New Jersey employer can fire you if the medical marijuana you are using is detected in a drug test.
Here’s the background as to how all this came about:
In 2010, the New Jersey Legislature enacted (and the Governor signed) a statute decriminalizing the use of medical marijuana and permitting its use by those for whom it is prescribed by a physician. In passing the “New Jersey Compassionate Use Medical Marijuana Act,” the Legislature declared that, “modern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions.” The Act set up a whole framework under which, once issued a proper prescription by their treating doctors, individuals could register with the State in order to legally purchase and use medical marijuana. Individuals who properly registered were now protected from any sort of criminal prosecution or civil penalties for possessing or using marijuana.
Given that the New Jersey Law Against Discrimination requires employers in the State to “reasonably accommodate” employees with disabilities – a Law that includes an obligation to accommodate the use of medication by disabled employees – one would think that, with the passage of the Compassionate Use Medical Marijuana Act, employees who were prescribed and took medical marijuana would have nothing to worry about.
However, as noted above, this has proven not to be the case. Included with the Medical Marijuana Act was a provision that reads as follows: “Nothing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in the workplace” (emphasis added). Did that provision simply mean that you couldn’t bring or take medical marijuana “in the workplace,” and that therefore your use outside the workplace still had to be accommodated? Or, alternatively, did that provision mean that, even if you took medical marijuana at home but were then later tested while “in the workplace” for its presence in your system, you could be fired?
While we think a reasonable and fair reading of all the provisions of the Medical Marijuana Act should have led to the conclusion that, as long as you didn’t bring medical marijuana into the workplace, your employer could not penalize you for using it while at home, the federal court in the Cotto case mentioned above decided otherwise, and no New Jersey State court has yet had the chance to disagree with that decision. So, for now, you are certainly at risk if your employer has a drug testing policy and you are using medical marijuana.
There is good news on the horizon, however. Currently pending in the New Jersey Legislature is a bill that would amend the Medical Marijuana Act and make clear that employees cannot be penalized for using medical marijuana as long as they can show proof that they have been registered for its use. We will keep you posted as bill moves through the Legislature.