New Jersey's Compassionate Use Medical Marijuana Act (the "Act") legalizes marijuana for medicinal use where individuals suffer from a "debilitating medical condition." These conditions, include among others, HIV, AIDS, cancer, and epilepsy. In connection with the Act, in December 2012, New Jersey's first medical marijuana dispensary opened in Montclair.
What does the Act mean for employers? The Act expressly provides that employers are not required to accommodate "the medical use of marijuana in any workplace." In other words, while the Act permits the medicinal use of marijuana, employers may prohibit the use of the substance at the workplace.
Notably, the federal Controlled Substances Act contradicts the New Jersey law by listing marijuana as a Schedule I controlled substance. This means that it is illegal, under federal law, for a person to possess, ingest or sell marijuana, even for medicinal purposes.
Impact on Employer Policies
Given the federal and New Jersey laws, employers can continue to enforce zero-tolerance anti-drug policies in the workplace. Employers, however, must exercise caution in drafting and distributing such policies. One way for employers to ensure that their policy comports with both federal and state law is to include a provision prohibiting the use of any "illegal" drugs on company premises. The term "illegal" can be defined to include all substances that are illegal under federal, state or local laws. The policy can also expressly state that it applies to the use of marijuana, for any reason.
The anti-drug policy should be distributed to all prospective and current employees, along with an acknowledgement of receipt of the policy for the individual to sign. In order to guard against any types of claims for disability discrimination, the employer's policy on accommodating disabilities in the workplace under the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) should also be distributed.
Bottom Line
The effects of the use of medicinal marijuana is a complicated issue for employers to resolve. In connection with these issues, employers may receive requests for accommodations, such as schedule or shift changes. Employers should remember that in most instances, the underlying condition which necessitates the use of medicinal marijuana may trigger accommodation requirements under the ADA or NJLAD.
Originally published on the Employer's Law Blog
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