New Jersey Employer Didn't Have to Waive Drug Test

 

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP September 5, 2018
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An employer in New Jersey didn't have to waive a post-accident drug test for an employee who was a registered medical marijuana user, according to a federal judge.

The ruling means that employers in the state still can dictate the terms of employment to include drug testing, said Myrna Maysonet, an attorney with Greenspoon Marder in Orlando, Fla.

Employers have a lot of discretion over managing their workplaces, but they still have to be aware of other situations that might require a reasonable accommodation, she added. The current ruling was narrow and didn't explore issues beyond waiving a drug test.

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

The employee in the case was suspended indefinitely after he told his employer that he couldn't pass a drug test because he used medical marijuana in addition to prescription pain medicine. He claimed that the suspension constituted unlawful disability discrimination under the New Jersey Compassionate Use Medical Marijuana Act and the New Jersey Law Against Discrimination. But the U.S. District Court for the District of New Jersey held that the employer didn't unlawfully discriminate against the worker.

"Nothing in the complaint indicates [that the employer] took issue with his disability as such, only with a consequence of his treatment," Judge Robert Kugler wrote for the court.

Kugler noted that all marijuana use is still illegal under federal law and that New Jersey state courts have generally found that private employers may require workers to pass a drug test.

Medical Marijuana Laws

More than 30 states have comprehensive medical marijuana laws, and 15 states permit the use of low-THC products in limited circumstances, according to the National Conference of State Legislatures. Tetrahydrocannabinol—known as THC—is the psychoactive component in marijuana. Low-THC products are mainly used for cannabidiol, which is not psychoactive but is said to have medicinal value.

New Jersey's law decriminalized medical marijuana in 2010 and protects registered users from civil penalties. However, the act doesn't require an employer "to accommodate the medical use of marijuana in any workplace," according to the statute.

The judge appeared to read the statute to mean that businesses can discipline medical marijuana cardholders, but some experts would argue that the act's language isn't as clear on the subject as it is in other states, said Ruth Rauls, an attorney with Saul Ewing Arnstein & Lehr in Princeton, N.J.

Indeed, Kugler noted that New Jersey's statute is less expansive than some other state laws. For instance, Arizona's law specifically provides workplace protections for medical marijuana users. And New York's law requires employers to provide a reasonable accommodation to certified cardholders. In contrast, Ohio's law expressly allows employers to discipline, fire or refuse to hire medical marijuana users.

"Unless expressly provided for by statute, most courts have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment actions," Kugler said.

The court's ruling emphasizes the need for employers to understand the parameters for authorized medical marijuana use in the applicable state, Rauls said. "The statutory language is going to be key in these types of cases."

Courts in some states have sided with employers. For example, in 2015, the Colorado Supreme Court found that even though a worker was permitted to use medical marijuana under state law, his firing was justified because marijuana is still illegal under federal law.

However, in 2017, a Rhode Island court sided with a job candidate who wasn't hired because she disclosed that she was a medical marijuana cardholder and would fail a pre-employment drug test. Additionally, the Massachusetts Supreme Judicial Court found that a registered medical marijuana user who was fired for failing a drug test could proceed in state court with her disability-discrimination claim. The court in that case held that employees have the right to seek a reasonable accommodation for medical marijuana use under the state's disability law.

Employers should think about what substance-abuse policies make the most sense for their workplace, Rauls said. Consider what jobs workers are performing and what constitutes a safe workplace. The analysis might be different for safety-sensitive positions, she noted.

Employers should be aware that they are never required to tolerate on-the-job impairment, Maysonet said. "But if you are a medical user and are abiding by the rules, you may have some protections under state law," she added. However, there are no employment protections for workers who use marijuana recreationally, even in the states that have authorized such use.

The case is Cotto vs. Ardagh Glass Packing Inc., D.N.J., No. 18-1037 (Aug. 10, 2018).

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