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Understanding the Impact of Legalized Marijuana in the Workplace

By Debra A. Sahler

Employers who perform drug testing on job applicants or employees should re‑visit their policies on drug use and drug testing as a result of recently enacted New Jersey Compassionate Use Medical Marijuana Act, S. 119, 213th Leg., (N. J. 2010) (“Compassionate Use Act” or hereinafter the Act). This law permits medical marijuana to be used by “qualifying patients” and becomes effective on July 1, 2010.

New Jersey’s Act was passed to protect from criminal prosecution patients who use medical marijuana to alleviate the symptoms or side effects of treatment related to certain “debilitating medical conditions”.  The medical conditions covered by the Act include the following: epilepsy; HIV; AIDS; cancer; ALS; severe muscle spasms; inflammatory bowel disease (including Crohn’s disease); multiple sclerosis and any other terminal illness that will result in death within a year, as determined by a doctor.

The Department of Health and Senior Services will maintain a confidential registry of qualifying patients and issue identification cards.  The Act provides that a qualifying patient “shall not be subject to any civil or administrative penalty or denied any right or privilege” related to the medical use of marijuana. The Law explicitly provides that employers are not required to accommodate the use of marijuana in any work place. 

Restrictions were enacted that define activities that can be performed while patients are under the influence of marijuana. Patients cannot "operate, navigate or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana." Patients are prohibited from smoking marijuana in "a school bus or other form of public transportation, in a private vehicle unless the vehicle is not in operation, on any school grounds, in any correctional facility, at any public park or beach, at any recreation center, or in any place where smoking is prohibited." Employers in these applicable fields must take note.

Because the Act permits registration only by individuals suffering from a debilitating medical condition, employers who are shown these registration cards will have notice that the employee or applicant at issue suffers from a condition that will likely qualify that individual for having a disability under the Americans with Disability Act and/or the New Jersey Law Against Discrimination.  In short, the New Jersey Law Against Discrimination prohibits an employer from taking any adverse employment action against a qualified individual on the basis of that individual’s actual or perceived disability and may require an employer to provide a reasonable accommodation to an employee or job applicant, unless doing so would cause an undue hardship on the employer. 

Employers may wish to permit job applicants and employees who suffer from the defined debilitating medical conditions to explain a positive drug test result for marijuana.  They should also avoid taking adverse employment action against these individuals who possess a registry identification card.  Improper actions could later be interpreted as having been made based on the individual’s actual or perceived disability. 

In light of the new legislation, employers need to review their company’s policies regarding drug use and drug testing. Human resources and drug testing personnel should be made aware of the company’s policy towards medical marijuana. We also recommend that employers adopt appropriate measures for maintaining the confidentiality of employees and applicants registration status.  Further, they should maintain uniformity in the enforcement of any drug testing policy and their response to positive drug test results. 

Finally, it is also recommended that employers be cautious when presented with a medical marijuana defense to a positive drug test and contact legal counsel whenever an employee requests an accommodation for medical marijuana use.

For more information contact Debra A. Sahler.

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