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Attention New Jersey employers: you may not terminate employees for failing a drug test due to their medical marijuana use. On March 10, 2020, the New Jersey Supreme Court decided that medical marijuana patients in New Jersey are protected by the New Jersey Law Against Discrimination (NJLAD), which means if an employee is terminated from his or her job based upon his or her proper medical use of marijuana, that employee may bring a disability discrimination claim under the NJLAD against the employer.
In the Supreme Court decision Wild v. Carriage Funeral Holdings Inc., the Court held that employers are prohibited from terminating employees based solely upon their medical marijuana use. The Court also held that employers may be required to accommodate an employee’s use of medical marijuana when it is consumed at home after work hours. As with other disabilities covered under the NJLAD, the rights of those employees are protected under the law and therefore the employer has a duty to make accommodations that are reasonable and appropriate under the circumstances.
If an employee or job applicant tests positive for cannabis in a drug test, the employer must be careful to provide the employee or job applicant with time to review the results and provide an explanation. The employer should provide this notice in writing and include a notice of the employee’s right to provide a legitimate explanation for the positive test result, including providing the employer with a copy of his or her medical marijuana authorization card or other type of proof of registration with the New Jersey Cannabis Regulatory Commission. The employee then has three (3) working days in which to respond. The employee also has the right to request a retest of the original sample at his or her own expense.
If, as a New Jersey employer, you have an employee or job applicant who has satisfactorily demonstrated that he or she is a lawful medical marijuana patient, you must allow the employee to use medical marijuana off-site, after work hours, and not while in the workplace. The failure to accommodate a medical marijuana user, at least when the use is outside of the workplace and during non-working hours, could lead to liability under the NJLAD. However, nothing in the NJLAD permits employees to use marijuana – medical or not – during work hours or on the workplace premises outside of regular working hours.
When it comes to issues of disability under the NJLAD, an employer and the employee must engage in a fact-sensitive and interactive process to determine a suitable accommodation. The employer must act on a case-by-case basis and go through the reasonable accommodation analysis as it pertains to the particular employee, which may include determining whether the employee can do the job safely if he or she is under the influence, or if the employee will medicate off-hours. For now, the New Jersey Supreme Court has made it clear that for medical marijuana patients, that reasonable accommodation should at the very least include permitting the employee to use medical marijuana outside of working hours and outside of the workplace.
Santomassimo Davis LLP is a premier Outside General Counsel™ firm for mid-cap businesses. The issues discussed in this article are typical of those that we handle for clients as we help them navigate the legal and regulatory matters affecting their employment/labor counseling and litigation.
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