• 09/10/2015

    THANK YOU FOR (NOT) SMOKING: Whether New Jersey Employers Will Be Required To Accommodate Medical Marijuana Users In The Workplace

    Client Alert

    By: Joshua L. Weiner, Esq.

    There is a continued and growing clash between New Jersey’s five-year old legalization of the use of medical marijuana, and an employer’s obligation to provide reasonable job accommodations for an employee’s medical disabilities under the New Jersey Law Against Discrimination (“LAD”). While this apparent clash was, as of five years ago, more of an academic question than one of practical reality, the truth of the matter is that at least three New Jersey lawsuits have already been filed regarding this issue, and what was once simply a matter of intellectual curiosity and in-house debate amongst employment and labor law practitioners is now a hot button issue that undoubtedly will receive substantial treatment and review from the courts in the foreseeable future.

    Two of these lawsuits are pending in the U.S. District Court for the District of New Jersey and a third has been filed in Superior Court in Essex County. In all three cases, plaintiffs say they were open with their bosses about receiving medical marijuana treatment, but were nonetheless fired after testing positive for marijuana. The suits accuse employers of disability discrimination under the LAD.

    Part of the confusion regarding the intersection between employer obligations under the LAD and an individual’s use of medical marijuana is the relative ambiguity created by the State’s Jekyll and Hyde public policy view on the use of medical marijuana. Under a backdrop of substantial debate and arm-wrenching, in 2010 New Jersey passed the Compassionate Use Medical Marijuana Act (“CUMMA”). In that time, however, the law has not been amended to explicitly provide any protections to employees who lawfully utilize medical marijuana. Indeed, CUMMA’s only employment-related provision is an employer-friendly one. Included as part of an effort to secure bi-partisan support for its passage, CUMMA was drafted to include the following safe-harbor provision for employers, which states, in part that “nothing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.”

    While that provision may at first seem jarring to workers, it must be remembered that CUMMA was not enacted to provide for the total and unfettered distribution and use of medical marijuana. CUMMA is the prototypical example of “compromise” legislation, with lawmakers on both the pro and con side of medical marijuana use making multiple concessions in order to get the legislation passed and signed into law by Governor Christie. It is a clear example of imperfect and schizophrenic legislation that is incredibly vague and unclear as to the State’s official public policy regarding the citizenry’s access to, and use of medical marijuana.

    For example, while permitting the limited and restricted use of medical marijuana by qualified patients, CUMMA nonetheless has very strict and detailed guidelines on the manner and means in which physicians can prescribe medical marijuana to their patients. The act also has multiple provisions that in some respects have the effect of minimizing and, in many instances, curtailing the lawful use of medical marijuana. For instance, CUMMA specifically states that governmental medical assistance programs and private health insurers are not required to cover the costs of purchasing medical marijuana, thus leaving many medical marijuana users to pay out-of-pocket for treatment (which is cost-prohibitive for many people). Moreover, CUMMA states that it does not protect from criminal prosecution those individuals who, notwithstanding their bona-fide medicinal use of marijuana, engage in usage in public places, such as school buses, public transportation, public parks or beaches, recreation centers or any school grounds. These two provisions, in conjunction with several others scattered throughout the body of the statute, are a clear indication from the Legislature that, although permitting medical marijuana to be used under the careful direction of the State through a complex and detailed regulatory scheme, the State does not appear ready to explicitly declare medical marijuana to be on equal footing with most other prescription medications, and thus continues to carry with it a substantially negative connotation. CUMMA is thus a far cry from the unfettered, open embrace and acceptance of medical marijuana usage as some might believe.

    The question thus become whether a New Jersey employer is permitted to institute a no-exceptions “zero tolerance policy” on employee medical marijuana usage, or whether such a policy, in light of CUMMA and the LAD runs afoul of an employer’s affirmative obligation to accommodate (or at least actively consider providing a reasonable accommodation to) an employee’s medicinal use of marijuana. Case law on the issue from other states has thus far favored employers. The most recent case is from Colorado, which has decriminalized marijuana use. In June, the Colorado Supreme Court said in Coats v. Dish Network that an employee can be fired for using medical marijuana after work, even if he is using the drug in accordance with state law.

    Adding to this tension and growing confusion in New Jersey is the fact that marijuana possession still remains illegal on the federal level, although such prohibition is not enforced. Thus, in looking at the hodgepodge of statutes and guidance from other states, the federal prohibition on marijuana possession and CUMMA’s ambiguous intent and declarative policies on medical marijuana usage, New Jersey companies are left in a bit of a bind. Add to this the fact that the LAD is one of the most remedial and liberally applied employment discrimination laws in the nation, and employers have a complex question on their hands, one for which there yet is no definitive answer.

    Without any specific guidance from either the legislature or courts at this nascent stage, it is best for all employers to begin reviewing and consider revising their drug policies. In doing so, it is always recommended that such review be conducted with the assistance and guidance of employment and labor counsel to ensure that any proposed changes are in conformance with this ever-changing legal landscape. 

    Hill Wallack LLP will continue to keep its clients and blog viewers apprised of any and all developments on this issue.

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    As attorneys we must give you the following disclaimer: The commentary and views expressed in this alert are solely the opinions of the individual author or authors and may not reflect the opinions of other authors. In addition, the information contained in this alert is intended merely as helpful background information that is general in nature. It is for informational purposes only, is not warranted as accurate or complete and does not constitute legal advice and, thus, should not be relied upon as such advice. Furthermore, you need to be aware that, under New Jersey law, short and strict filing deadlines apply to an employment claim or dispute.

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