Our country’s attitudes towards the use of medical and recreational marijuana are rapidly changing.  According to a recent Pew report 74% of Millennials, 63% of Gen Xers and 54% of Baby Boomers favor legalizing the use of marijuana.  Currently, recreational marijuana is legal in nine (9) states. In addition, thirty (30) states, have legalized the use of medical marijuana, New Jersey and New York among them. As the legalization of marijuana swiftly spreads across our nation, it is expected that the enactment of laws protecting medical marijuana users against unlawful job terminations will increase.  However, as things stand now, if an employer in New Jersey finds out you are using medical marijuana you may be fired.

Under federal law, the possession, sale, or use of marijuana is still illegal. Neither the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against those who are disabled, nor the Family and Medical Leave Act (FMLA), which allows qualified employees unpaid leave for their own health condition or to take care of a qualified family member, protects employees from adverse employment actions because of their use of medical marijuana. The Controlled Substance Act, a federal law which is part of the Comprehensive Drug Abuse and Prevention Act, classifies cannabis as a substance that “has a high potential for abuse . . . [and] no currently accepted medical use in treatment in the United States.” The federal Drug Free Workplace Act, which applies to a federal contractors and grantees, requires employers to provide drug-free workplaces as a condition for receiving federal grants.

While no state is found providing employment protection for recreational marijuana use, several states provide explicit employment protection for medical marijuana use. For example, in New York, an employer cannot discriminate against a “certified” patient (one who has a disability) only because of the certified medical use or manufacture of marijuana. In addition, employers in New York must reasonably accommodate the disability associates with the legal marijuana use.  Other states which provide similar protections include: Arizona, Arkansas, Connecticut, Delaware, Illinois, Massachusetts, Minnesota, Pennsylvania, and West Virginia.

Currently, New Jersey does not have employment protections regarding the hiring and firing of medical marijuana users. Indeed, a recent federal court in New Jersey held that neither the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) nor the New Jersey Law Against Discrimination (“LAD”) obligates an employer to waive its requirements for employees to pass drug tests, including tests for the use of marijuana.

In Cotto v. Ardagh Glass Packing, 2018 U.S. Dist. LEXIS 135194 (D. N.J. decided August 10, 2018), the plaintiff, a forklift operator, suffered a work-related injury and was required to take a drug test as a condition of continued employment. Cotto informed his employer that he would not pass the drug test because he was a registered medical marijuana user. The employer refused to relax the drug testing requirement and placed Cotto on an indefinite suspension. Cotto promptly filed suit alleging that the company discriminated against him, failed to provide him with a reasonable accommodation, and retaliated against him because of his disability. The Court found that while the CUMMA decriminalizes medical marijuana use, it does not require employers to permit the use of marijuana in the workplace. Similarly, the Court held that the LAD does not include medical marijuana use as a protected category, and therefore, does not require an employer to accommodate an employee’s use of medical marijuana. The Court dismissed Cotto’s retaliation claim because refusing a drug test does not qualify as protected activity.

The good news for medical marijuana users in New Jersey is that employment protections are on their way. State Assembly Bill 1838, introduced in January 2018, would amend the CUMMA, prohibiting employers from taking an adverse employment action against an employee who uses medical marijuana in accordance with New Jersey law, unless the employer can prove by a preponderance of evidence that the employee’s use of marijuana impairs their ability to do their job safely. Similarly, State Senate Bill S10, a measure named “Jake’s Law” after Jake Honig of Howell, a 7-year-old boy who died from brain cancer in January 2018, would, among others, shield employees from losing their jobs if they are lawfully registered medical marijuana users.

If you believe your employer unreasonably concluded your medical disability precludes your ability to perform your job safely, then call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, we are well experienced in handling discrimination cases and will aggressively seek to discover the evidence required to get your claim to a jury. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.

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