New Jersey Bills Would Provide Employment Protections for Medical Marijuana Patients

By M. Tae Phillips and Michael J. Riccobono © Ogletree Deakins Apr 11, 2017

On Jan. 18, 2010, the New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA) was signed into law. While the NJCUMMA explicitly states that it does not require employers to accommodate a qualified patient's use of medicinal marijuana in the workplace, that could be changing soon.

Following the lead of several other states, the New Jersey Legislature recently introduced two bills designed to create workplace protections for medical marijuana patients in the state of New Jersey.

On February 4, 2016 and May 9, 2016, two bills (Assembly Bill 2482 and Senate Bill 2161) were introduced in the New Jersey Legislature that, if enacted, would amend the NJCUMMA and prohibit employers from taking any adverse employment action against an employee based on either the employee's status as a registry identification cardholder or the employee's positive drug test for marijuana, unless the employer could establish that the lawful use of medical marijuana impaired the employee's ability to perform his or her job responsibilities.

Further, if employees or applicants were to test positive for marijuana, both bills would require that the employees or job applicants be offered an opportunity to present a legitimate medical explanation for the positive test result and provided written notice of their right to explain the same. To date, however, neither bill has been voted out of committee.

Although the NJCUMMA does not currently provide any employment-related protections to medical marijuana users, there are at least two New Jersey federal cases involving claims for wrongful discharge based on the plaintiff-employee's use of medical marijuana. 

First, in Barrett v. Robert Half Corporation, No. 2:15-cv-06245, the plaintiff was discharged from his employment with the defendant when he tested positive for marijuana after submitting to a mandatory drug test at his employer's behest.

The plaintiff filed suit and asserted claims for failure to accommodate and disability discrimination under the New Jersey Law Against Discrimination (NJLAD). The court dismissed the plaintiff's complaint on procedural grounds, finding that the plaintiff had merely plead that he "notified Defendants that he was licensed to use medical marijuana as part of treatment for his disability, but [did] not allege that he requested assistance in connection with his disability." Because the plaintiff's complaint was dismissed on procedural grounds, the court did not address the substantive question under New Jersey law as to whether an employer has any obligation to accommodate a disabled employee's off-duty medical marijuana use.    

More recently, in Wild v. Carriage Services, No. 2:17-cv-1398-JLL-JAD, the plaintiff, who was using medical marijuana as part of his treatment for cancer, was discharged after he submitted to a drug test by his employer and tested positive for marijuana, despite the fact that he had advised his employer that he was licensed to use medical marijuana as part of his cancer treatment.

The plaintiff brought suit under the NJLAD and asserted claims for failure to accommodate and disability discrimination, among other claims. The defendant-employer moved to dismiss. Among other arguments, the employer asserted that the plaintiff had never requested an accommodation and, in any event, the NJCUMMA is preempted by federal law; it does not regulate private employment; and it does not mandate that employers accommodate medical marijuana users. A decision on the defendant's motion to dismiss is currently pending.

Numerous other courts across the country have routinely dismissed actions brought by employees for wrongful termination or failure to hire under state medical marijuana laws in the absence of an express anti-discrimination provision within the language of the statutes.

To date, the following states have included anti-discrimination provisions within their medical marijuana statutes: Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Nevada, Pennsylvania and Rhode Island. While there has yet to be a reported court opinion addressing a medical marijuana anti-discrimination provision in these states, that is likely due to the liability an employer may face if it takes some type of adverse employment action against a medical marijuana user in those jurisdictions.

New Jersey employers may want to monitor the proposed legislation to amend the NJCUMMA. Indeed, if either Assembly Bill 2482 or Senate Bill 2161 are signed into law, New Jersey employers will need to think twice before taking adverse employment action against employees for either their status as a registered user of medical marijuana or for a positive drug test for marijuana.

M. Tae Phillips is an attorney with Ogletree Deakins in Birmingham, Ala. Michael J. Riccobono is an attorney with Ogletree Deakins in Morristown, N.J. © Ogletree Deakins. All rights reserved. Reposted with permission. 

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