Will jobs go to pot because of the medical marijuana bill? That’s the burning question on the minds of many employers and workers after New Jersey last month became the first state in the region to legalize medical marijuana. The Compassionate Use Act, which takes effect in July, protects medical marijuana users from criminal prosecution and penalties. But how the bill applies to the workplace is bound to become a hot topic for many companies, predicts employment lawyer Carol Goodman, adding that clients are already flooding her office with inquiries.
If history is any indication, the fledgling law — which states only that employers don’t have to allow the use of medical marijuana in the workplace — is sure to spark a series of lawsuits, she said.
In 2008, the State Supreme Court in California, the first state to legalize medical marijuana in 1996, ruled that employers could fire workers who failed drug tests. Last month, the same court struck down a law that sought to place limits on the amount of medical marijuana a patient can possess.
Court rulings across the dozen other states that currently allow medical marijuana have also helped to clarify the law on issues like privacy and discrimination. Goodman predicts New Jersey will undergo a similar process.
“In the next year, we’re going to see a lot of different court cases and regulations that go into details. Once there are, the open issues will be clarified,” said Goodman, a partner with Manhattan law firm Herrick, Feinstein.
But, she added, the law will probably never expand to allow the use of medical marijuana in the workplace.
She recently spoke with Your Business about how to interpret the current version of the bill.
Q. Can an employee use medical marijuana in the workplace?
A. The act doesn’t allow the use in the workplace at all. All it does is protect them from being arrested.
Q. Can a company fire someone who tests positive for medical marijuana, even if it was used outside of work?
A. Under the strict reading of the act right now, the answer is yes. I wouldn’t be surprised if interpretations come out from the New Jersey Department of Health and Senior Services or court decisions that clarify that issue. But right now, the act does not give the employer additional obligations. Employers also don’t necessarily have to fire the employee.
Q. Can’t an employee then claim discrimination?
A. At this point, no, because the act doesn’t require the employer to accommodate any medical use. But it might be an issue open to interpretation. If the employee has a disability and is denied an accommodation under disability laws, they might have an action against the employer. Right now, though, medical marijuana is not considered a medical accommodation. I predict the Department of Health will clarify that, because that’s a big issue.
Q. How can an employee who uses medical marijuana avoid being fired?
A. It’s important that the employee let the employer know this is a prescribed drug and not used for illegal or recreational purposes. The employer is likely to view it as a prescription drug. I certainly recommend an employee make that known if they have to take a drug test.
Q. Doesn’t that lead to medical confidentiality issues?
A. You do not under the law have to give the information, but the employee has to realize they don’t have any protection in the workplace under this act. They could be fired if their bloodstream shows illegal drugs, so they may want to consider telling someone in human resources why their drug test might come out positive. Also, according to the medical marijuana act, doctors can only recommend this drug if you’re suffering from a debilitating medical condition. And if you are, it’s likely you’re disabled and asking for other accommodations at the same time, so the employer could already know about the condition.
Q. What about job seekers who are asked to take a drug test?
A. It’s the same exact analysis. There’s no requirement to inform the employer, but if they know they’re about to fail the drug test, I suggest they tell the company it’s legal.
Q. Should employers revise their company manuals to address medical marijuana?
A. They don’t need to rewrite their policy yet, though I’d always recommend the employer make an addition saying they’ll comply with all state laws concerning disability and the need to accommmodate employees. It’s a case-by-case assessment. If this situation comes up, employers should consult with an attorney before acting. Take a cautious and prudent approach.
Q. How have other states with medical marijuana laws handled this issue?
A. I’ve read some decisions in Washington, Montana, California, Oregon. These are very recent laws, but the court cases I’ve reviewed found the employee does not have a cause of action against an employer for being terminated or not being hired. In other words, the employer was in his right to terminate an employee for a drug test that was positive for marijuana, even if the use did not violate state law.
Q. Why do you predict this will be such a hot issue for companies?
A. One of the most popular issues I deal with when it comes to employers is what their obligations are for an employee that has a medical issue or disability, and whether the employer can fire them. This act will be very closely watched, because accommodation in the workplace is an issue that comes up all the time, every day. But for now, most people are taking a “wait and see” approach. Star Ledger.