Ivo is a partner in Obermayer’s Labor Relations & Employment Law Department. He focuses his practice on representing employers, including advising companies on how to handle employee issues, and defending employee claims...Read More by Author
“Wild” Times for Pot in NJ: Legislature Delays on Marijuana Bills with Employment Protections, but the Courts Open the Door
On March 25, 2019, New Jersey lawmakers called off a vote on Senate Bill No. 2703 (Assembly Bill No. 4497) legalizing recreational marijuana (cannabis) (“Recreational Bill”). State Senate President Stephen Sweeney (D-Gloucester), pulled the legislation because the 21 votes needed to secure its passage had not been secured. He simultaneously called off a vote on a companion piece of legislation that would have expanded New Jersey’s Medical Cannabis Law, the “Jake Honig Compassionate Use Medical Cannabis Act” (“Jake’s Law”). Sen. Sweeney intends to reintroduce both Bills for a vote as soon as this May, assuming he is able to obtain the 21 votes needed to pass both measures in the Senate.
The Recreational Bill and Jake’s Law could both have significant Employment Law implications in New Jersey. Although the Recreational Bill would not prevent New Jersey Employers from maintaining a “drug-free workplace,” it would prohibit New Jersey employers from taking any adverse employment action (e.g., hiring, firing, disciplinary action, etc.) against current and potential employees because they are cannabis users, or because they test positive on a urine test for cannabis. The Recreational Bill would also prohibit an employer from considering cannabis related arrests, charges, and convictions related to possession and/or sale of cannabis when making hiring decisions.
New Jersey’s current Medical Marijuana Law does not require an employer to accommodate an employee’s use of marijuana in any workplace. Similarly, Jake’s law would not restrict an employer’s ability to prohibit, or take adverse employment action against, employees who possess or use cannabis during work hours. However, Jake’s Law does include an anti-discrimination framework to protect an employee’s off-duty medical cannabis use, including:
- Language prohibiting employers from “taking adverse employment action against an employee who is a registered qualified patient based solely on the employee’s status as a registrant with the commission”; and
- Language requiring employers to give employees the opportunity to present a “legitimate medical explanation” for a positive drug test result for cannabis, including, submission of information explaining the test result, retesting at the employee’s expense, and submission of an authorization to use medical cannabis.
Jake’s law would not require an employer to commit any act that would cause it to be in violation of federal law, or that would result in the loss of a licensing-related benefit or federal funding obtained and secured under federal law (i.e. a government contract).
The Wild Decision
Just two days after the two marijuana bills were pulled off the floor, the New Jersey Appellate Division issued a new published opinion addressing whether an employee who uses marijuana outside of the workplace for a disability, and who is later terminated for failing a drug test, can file a claim against his former employer for disability discrimination under the New Jersey Law Against Discrimination (“NJLAD”). This has been an unsettled issue in New Jersey for several years. In 2018, a New Jersey Federal Court ruled that the NJLAD did not require an employer to waive a drug test requirement as a condition of continued employment, even if the employee in question was disabled and was legally prescribed medical marijuana. However, in this latest case, Wild v. Carriage Funeral Holdings, the Appellate Division ruled in favor of the employee.
Plaintiff, Justin Wild, worked for Carriage Funeral Holdings as a funeral director. During his employment, Mr. Wild was diagnosed with cancer and prescribed medical marijuana. He was later involved in a vehicle accident while working for Carriage. When he disclosed his medical marijuana license at the hospital, Mr. Wild was told by the attending doctor that no tests would be required because it was clear that he was not under the influence. However, Carriage later required Mr. Wild to take a drug test, and ultimately terminated him.
While Carriage was originally successful in dismissing Mr. Wild’s claims of disability discrimination under the NJLAD, the Appellate Division disagreed and reinstated his claims. In doing so, the court did not rule that Mr. Wild would ultimately prevail, but said that he had done enough to plead a valid NJLAD claim – both for discriminatory termination and for failing to accommodate his disability. Thus, the case will continue, and Carriage must now prepare to continue to defend the claim or settle out of court.
If passed in the future, the Recreational Bill and Jake’s Law would both add substantial employment-related protections for employees who use marijuana outside of work, for both recreational and medical purposes. In the meantime, the Wild decision makes it clear that employees who are certified to use medical marijuana at home are potentially protected by the NJLAD as well. New Jersey employers should also proceed with caution before deciding not to hire an employee because of a positive test for marijuana, if they have knowledge that the positive test may have been caused by legal medical use.
Furthermore, while drug testing remains legal in many circumstances, employers should keep in mind that common urine tests measure metabolites from past marijuana use, and cannot be relied upon to determine workplace impairment. Thus, employers evaluating potential termination or other adverse employment actions against medical marijuana users should carefully consider whether they have adequate evidence of workplace impairment or work performance issues. This issue remains far from settled, and employers facing sticky medical marijuana-related dilemmas would be wise to consult counsel.
 N.J.S.A. 24:6I-14.