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Medical Marijuana and the New Jersey Employer

Medical Marijuana in the Workplace

Like numerous other states, New Jersey has approved the use of marijuana for medicinal purposes through the enactment of the New Jersey Compassionate Use Medical Marijuana Act (MMA), NJSA 24:61-1, et seq. In doing so, the New Jersey legislature has now thrust upon the courts the issue of whether marijuana "use" in the workplace has to be allowed by employers.
The issue that needs to be addressed is whether the wording of NJSA 24:64-14 indicates that an employer is allowed to discipline an individual who is using marijuana for legally permitted purposes. The Act reads, "(n)othing in this act shall be construed to require... an employer to accommodate the medical use of marijuana in any workplace."
At this time there are several cases in both federal and state courts pending on the issue but no decisions have been issued.

The Definition of "Use" under the Medical Marijuana Act

I have read several articles on the issue and reviewed the facts of current pending cases. The opinions of those interviewed so far have been looking to the definition of "in any workplace" and the obligation of an employer to "accommodate" as the main issue since they relate to the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (LAD).

While the wording of the MMA is arguably vague in regards to the definition of the workplace, the courts will likely look to the totality of the circumstances in the cases to determine the definition of "use" when it comes to the MMA.

The ADA and LAD require employers to accommodate those with disabilities, but does not prevent an employer from discipline, discharge or denial of employment if the disability would adversely impact job performance. In my opinion, the "use" of marijuana in the workplace is going to have an impact on job performance (if it is the prescribed medication for treatment of a recognized condition) before discipline would be appropriate.

As such, I believe the courts will look to the medical definition of marijuana and the conditions for which there is an appropriate/accepted use to determine the circumstances where "use" (whether pre-work or actively in the workplace) should be allowed.

Until the courts provide a more definitive answer I recommend that clients look to the totality of the circumstances and the impact on job performance before enforcing a zero tolerance policy against an employee with legally prescribed medicinal marijuana.

By: James P. Backenson

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