CSG Law Alert: How Should Employers Address Medical Marijuana Use by Employees?

While the likely decriminalization of recreational marijuana is all the buzz in New Jersey, employers cannot forget that they need to be prepared now to address an employee who is a medical marijuana card holder under New Jersey’s Compassionate Use of Medical Marijuana Act (CUMMA) to avoid inadvertent disability discrimination.

Under the Americans with Disabilities Act (ADA), there is no legal requirement to accommodate medical marijuana use because marijuana is illegal under federal law. While CUMMA also states that “nothing [requires] an employer to accommodate the medical use of marijuana in any workplace,” it is not clear what this means for an employee’s off-duty medical marijuana use.  New Jersey also has pending legislation, Bill A1838, which establishes protection from adverse employment actions for authorized medical marijuana patients unless the use impairs the employee’s ability to perform job responsibilities.

Although New Jersey courts have not yet decided these issues as they relate to medical marijuana use under the New Jersey Law Against Discrimination (LAD), the LAD could also require employers to reasonably accommodate an employee’s off-duty medical marijuana use and may provide protection from adverse employment actions for such use.

Thus, unless an employee is using marijuana during work hours or showing up to work impaired – which no employer is obligated to tolerate – the best practice is to accommodate an employee and avoid any related adverse employment action, so long as doing so would not impact workplace safety.  Moreover, no employer would be obligated to place itself in violation of federal law or cause itself to lose a federal contract or funding.

Employers should consult counsel before making employment decisions related to off-duty medical marijuana use and should review their policies and job descriptions to ensure compliance with the changing legal landscape.

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