The legalization of medical cannabis under New Jersey’s Compassionate Use of Medical Marijuana Act (“CUMMA”), and Governor Phil Murphy’s recent expansion of the program, has created many questions for employers in adapting to the changing legal landscape.  With the impending legalization of the adult use of cannabis on the horizon, employers now more than ever need to understand their obligations to reasonably accommodate employees and their rights (if any) to terminate employees for cannabis use.

Cannabis is still classified as a Schedule I substance under federal law and therefore, any use of cannabis (medical and adult use alike) violates federal law.  Employers are accordingly not required to accommodate the use of medical cannabis under the Americans with Disabilities Act.  Despite this reality, more than half of states, including New Jersey, have enacted laws to allow the medicinal use of cannabis.

With the enactment of CUMMA, many New Jersey employers are left wondering whether they have to accommodate the use of medical cannabis both inside and outside the workplace.  Significantly, CUMMA states that “nothing in this act shall be construed to require . . . any employer to accommodate the medical use of marijuana in any workplace.”  N.J.S.A. 24:6I-14 (emphasis added).  As a result, an employee who is clearly found to be using cannabis at work, even a registered patient with a valid medical cannabis ID card from the New Jersey Department of Health, may be terminated by his or her employer.

Indeed, this past August, the United States District Court for the District of New Jersey in Cotto v. Ardagh Glass Packing, Inc. held that an employer was not required to accommodate a fork lift driver’s medical cannabis use, despite the fact that the driver’s doctor gave him a note stating that he could operate machinery while using his prescription.  In that case, the employer required the employee to pass a drug test before he could return to work after sustaining an injury while operating a fork lift.  In rejecting the fork lift driver’s claims under the New Jersey Law Against Discrimination (“LAD”), the court noted that the case concerned conduct resulting from the treatment of a disability, not the disability itself.  The court reasoned that nothing in LAD or CUMMA required an employer to accommodate the use of medical cannabis in the workplace.

Employers are faced with a more complicated situation when an employee uses medical cannabis outside of the workplace and tests positive for cannabis.  As an initial matter, testing for cannabis use is imprecise and only indicates whether cannabis was used within the past several weeks.  As such, employers are unable to determine the precise date of cannabis use and therefore whether the use impaired the employee’s ability to perform his or her job duties.

This past February, the New Jersey Superior Court addressed the issue of employee cannabis usage outside of the workplace in Wild v. Carriage Funeral Holdings, Inc. In that case, the employee, a funeral services director, was involved in an accident which occurred during the course of his employment through no fault of his own (and with no connection to his medical cannabis usage).  His employer learned about his lawful nighttime medical cannabis use and demanded that the employee take a drug test, which came back positive.  The employer terminated the employee for his violation of its drug and alcohol policy.  The employee brought a case against his former employer for violations under LAD.  In granting the employer’s motion to dismiss, the court held that CUMMA does not contain employment-related protections for users of medicinal cannabis and no accommodations are required to be made in the workplace.  Therefore, this decision indicates that at least in some instances, an employer may terminate an employee for cannabis use outside of the workplace.  Notably, this decision involved an employee whose job duties included operating a motor vehicle and the use of medical cannabis on the job would have directly affected his ability to perform that job duty.

Employers, however, should be wary of the law surrounding workplace drug testing as employers are not permitted to blindly force their employees to take drug tests without meeting certain criteria first.  While New Jersey has not enacted any specific law to regulate private sector drug testing, in 1992, the New Jersey Supreme Court set forth several guiding principles in Hennessey v. Coastal Eagle Point Oil Co.  Generally, private sector employers are prohibited from “random” drug testing except for employees in “safety-sensitive” positions.  Indeed, employees that do not hold “safety-sensitive” positions should only be tested for individualized cause that is job-related.  While there is no one definition of a “safety-sensitive” position, the job duties likely entail tasks like the operation of heavy equipment, driving a motor vehicle, or providing medical care.  Moreover, any drug testing program must meet certain procedural requirements, including, but not limited to, a procedure that allows as much privacy and dignity as possible and employee notice of the program, which details the method of testing.  In sum, employers do not have an absolute right to require employees to submit to drug testing.

Overall, New Jersey employers should carefully consider making termination decisions based on employees’ cannabis usage and abide by the drug testing principles set forth by the New Jersey Supreme Court.  Employers should also continue to closely monitor any developments in the law.  While CUMMA currently does not require employers to accommodate medical cannabis usage in the workplace, other states have recently decided otherwise.  Moreover, proposed legislation, such as Senate Bill Number 830 (which would legalize the adult use of cannabis for recreational purposes), would prohibit an employer from taking an adverse employment action against an employee for cannabis use, unless the employer has a “rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.”  This proposed legislation does not require employers to permit or accommodate the use of cannabis in the workplace or affect employers’ ability to maintain/enact drug-free workplace policies that prohibit the use of cannabis in the workplace.

In sum, employers should review their current anti-discrimination and drug and alcohol policies to ensure compliance with the current state of the law and continue to follow any developments in new legislation.  Significantly, even though New Jersey employers are not presently required to accommodate use of medical cannabis in the workplace, they are still under an obligation to engage in the interactive process with employees to reasonably accommodate their underlying medical conditions in other ways.  Employers with any questions should consult counsel to ascertain their specific rights and obligations.