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Smoldering News: Employers May Face Discrimination Charges for Terminating Workers Based on Medical Marijuana Use
Smoldering News: Employers May Face Discrimination Charges for Terminating Workers Based on Medical Marijuana Use

As the use of medical marijuana increases, employers are facing novel questions about their rights and responsibilities related to employees who use medical cannabis. A recent decision by the New Jersey Supreme Court is providing some much-needed guidance in this rapidly evolving area of the law. Specifically, the Court has held that an employee may assert a claim for unlawful discrimination against an employer that discharges an employee for using medical cannabis outside of the workplace.

Previously, it was unclear how the 2018 Compassionate Use Act, which permitted the lawful use of medical marijuana, would impact New Jersey’s Law Against Discrimination (LAD). The LAD generally prohibits employers from hiring, discharging or impacting an individual’s employment on certain bases. The remedies under the LAD are meant to not only redress the emotional and economic effects of discrimination, but also to act "as a deterrent against future discrimination." These deterrent damages are now potentially available to an employee who was discharged for using medical marijuana outside of the workplace.

Since the events that transpired in the case referenced above, the New Jersey Legislature enacted the Jake Honig Compassionate Use Medical Cannabis Act (Honig Act) in the summer of 2019. The Honig Act expressly prohibits employers from taking an adverse employment action against an employee, who is a registered qualifying medical cannabis patient, based solely on the employee’s status as a registered user of medical cannabis. The New Jersey Supreme Court’s recent pronouncement is consistent with the spirit and letter of the Honig Act.

Notably, the Honig Act does not restrict an employer’s ability to prohibit, or take adverse employment action for, the possession or use of medical cannabis during work hours, or on the premises of the workplace outside of work hours. Additionally, the Honig Act should not be construed as permitting a person to “operate, navigate, or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of cannabis….”            

Employers are encouraged to review their drug and alcohol policy to make sure that it addresses the use and possession of intoxicating substances during work hours or on business premises. Further, employers should consider updating their drug testing policy to allow an employee or job applicant the opportunity to present a legitimate medical explanation for a positive cannabis test result.

*This alert is not a complete recitation of the law and we recommend contacting the attorneys at Connell Foley for tailored and specific legal advice.

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