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July 19, 2018

NJ Cannabis Insider: It's high time for N.J. employers to address marijuana in the workplace

With the legalization of medical marijuana through New Jersey’s Compassionate Use of Medical Marijuana Act (CUMMA) and the decriminalization of recreational marijuana on the horizon, employers must prepare now to address marijuana in the workplace.

It is imperative that employers understand their rights and obligations related to medical marijuana — to adequately protect their businesses and to avoid inadvertent disability discrimination. For instance, no employer is obligated to tolerate an employee who shows up to work impaired or uses marijuana during work hours or on work premises. Moreover, there is no legal requirement to accommodate medical marijuana use under the Americans with Disabilities Act because marijuana remains illegal under federal law.

However, while CUMMA 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 medical marijuana patients unless the use impairs the employee’s ability to perform job responsibilities.

While New Jersey courts have yet to render a decision regarding medical marijuana use under the New Jersey Law Against Discrimination’s protections against disability discrimination, it could require employers to reasonably accommodate an employee’s off duty medical marijuana use. Such a decision also may provide protection from adverse employment actions.

Thus, the best practice is for employers to accommodate an employee’s off-duty medical marijuana use and avoid any related adverse employment action, so long as doing so would not impact workplace safety.

Employers are also not obligated to do anything that would place their business in violation of federal law or cause them to lose a federal contract or funding. Employers also should revisit their drug-related policies and consider modifying or eliminating drug screening for marijuana for positions that are not safety-sensitive or subject to federal laws mandating a drug-free workplace. Doing so can help reduce the risk of inadvertent discrimination and prevent employers from losing prime candidates. In fact, some employers are concerned that they would be unable to maintain staff if they declined to hire all qualified candidates that tested positive for marijuana. This is particularly true now that national unemployment rates are low and, according to a 2017 Marist Poll, 22 percent of adult Americans use marijuana.

Employers who are more concerned with employees showing up to work impaired (and decreasing productivity and increasing workplace safety concerns/liability), rather than employees’ off-duty marijuana use, are also beginning to shift their focus to training people to recognize when an employee is impaired at work, as opposed to relying on drug screens. This is because marijuana screens detect the presence of marijuana in the system and not present impairment.

Marijuana policies will vary greatly depending on the nature of the services an employer provides. Employers should consult with counsel to decide how to approach marijuana policies and ensure compliance with the changing legal landscape. For a checklist outlining what NJ employers should be doing now and additional insight on cannabis reform in New Jersey, I encourage you to visit and subscribe to CSG’s CannaBiz Law Blog.

This article was originally published in NJ Cannabis Insider's July 19, 2018 issue, which can be found here.