Update on Medical Marijuana in the New Jersey Workplace
On January 18, 2010, the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 et seq., was signed into law to protect from arrest and other penalties patients who use marijuana to alleviate suffering from debilitating medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce marijuana for medical purposes.
In a previous blog post, we discussed a case from the District Court of New Jersey that concluded that LAD does not require an employer to accommodate medical marijuana by waiving the drug testing of employees who are prescribed marijuana. That blog post can be read HERE.
Recently, the Appellate Division of New Jersey in Wild v. Carriage Funeral Holdings addressed the interplay of the LAD and medical marijuana. In that case, an assistant funeral director was terminated simply because he disclosed to his supervisor he had a prescription for medical marijuana and was using it in conjunction with his cancer treatment after work hours. The trial court upheld the termination, holding that while the prescription is lawful, that did not mean the employer had to retain the employee. The Appellate Division reversed, concluding an employer cannot terminate an employee simply because of possession of such a prescription, or using it as directed. Instead, the employer would also have to prove that it could not “accommodate” the employee’s need for the medication even if it does not affect job performance. While this decision could be reversed by the Supreme Court if appealed, at least for now, this case appears to settle the confusion of whether mere possession of a medical marijuana prescription, or even prescribed usage of medical marijuana in a manner which does not affect performance, will be deemed lawful. Essentially, this decision would treat medical marijuana like any other prescription medication that might be needed for a medical condition, which might have side effects, but does not affect job performance.
Medical marijuana is still technically illegal under federal law, which in part explains the holding of the decision of the District Court of New Jersey, noted above. As additional developments unfold in this area of the law, the Zazzali Firm will continue to provide updates on those developments.