New Jersey has allowed medical marijuana use since 2009, when a bill originally known as the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) became law. As written, the law did not specify how an individual’s use of medical marijuana would affect their employment. If an employer fires an employee because of their medical marijuana prescription, are they discriminating against the employee for the underlying medical condition? Is this unlawful disability discrimination under the New Jersey Law Against Discrimination (NJLAD)?
Two events in the last year have made the situation clearer, at least at the state level. In 2019, the Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA), which contains express protections for employees and replaces CUMMA. This year, the New Jersey Supreme Court ruled that a claim for disability discrimination was possible under CUMMA. If your employment was recently terminated for having a medical marijuana prescription, it is important that you reach out to a New Jersey disability discrimination lawyer as soon as possible to discuss your legal options.
Ambiguity in the Compassionate Use Medical Marijuana Act
Sections 8 and 16 of CUMMA, codified at N.J. Rev. Stat. §§ 24:6I-8 and 24:6I-14, left employers and employees uncertain about the rights of medical marijuana patients. Section 8 stated that the law does not permit anyone to operate a vehicle or perform certain other tasks “while under the influence of marijuana.” Section 16 stated that the statute did not “require…an employer to accommodate the medical use of marijuana in any workplace.” The statute made no mention of employees’ rights.
In March 2020, the New Jersey Supreme Court ruled that a medical marijuana patient’s NJLAD lawsuit alleging disability discrimination could proceed. The employer allegedly fired the plaintiff specifically because of his use of medical marijuana outside of the workplace. There was no evidence that he was under the influence of marijuana while at work. The court found that CUMMA impacts employee rights under the NJLAD.
First Attempt at Amending the Law
A1838, introduced on January 9, 2018, would have added a new section to CUMMA regarding employment protections for medical marijuana patients. It received a committee assignment, but was never heard from again.
The bill would have prohibited employers from taking any “adverse employment action” against an employee because of their “lawful use of medical marijuana,” unless the employer could prove by a preponderance of evidence that it “impaired [their] ability to perform [their] job responsibilities. The bill specified that an employee could be considered “impaired” if they “manifest[ed] specific articulable symptoms while working” that interfered with their job performance.
The Compassionate Use Medical Cannabis Act
CUMCA became law in July 2019. Its namesake was a boy who died of brain cancer at the age of seven, and whose parents sought medical marijuana to ease his suffering. The new law expands access to medical marijuana and eases many of the requirements placed on patients. It also adds explicit employment protections.
Employers may not take “adverse employment actions” against employees based solely on their status as a registered medical marijuana patient. Employees must be given an opportunity to explain a positive drug test result. The law also protects employers from certain adverse actions under state law based on an employee’s lawful medical marijuana use. It does not specify an enforcement mechanism, but the New Jersey Supreme Court has already ruled that the NJLAD may apply in many cases.
The experienced and knowledgeable disability discrimination lawyers at the Resnick Law Group can help you if you have a dispute with an employer in New Jersey or New York. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to discuss your rights and options.