“I Use Prescribed Medical Marijuana. Could I Lose my Job?”

August 31, 2018

Lía Fiol-Matta, Esq.

Recreational marijuana is legal in nine (9) states; in addition, thirty (30) states, in addition to the District of Columbia, have legalized the use of medical marijuana. New Jersey and New York are among the states which allow the use of medical marijuana. As the legalization of marijuana expands across the country, laws protecting medical marijuana users against adverse employment actions continue to evolve as cases are brought forth for courts to consider.

Under federal law, the possession, sale or use of cannabis (marijuana) is still illegal; therefore, neither the Americans with Disabilities Act (ADA, 42 U.S. Code § 12101, which prohibits employers from discriminating against those who are disabled) nor the Family and Medical Leave Act (FMLA, 29 U.S.C. 2601, 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 Substances Act (CSA, 21 U.S.C. §§ 801, et.seq.), federal legislation 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” (§ 812). The federal Drug Free Workplace Act (DFWA, 41 U.S.C. 81), which applies to federal contractors and grantees, requires employers to provide drug-free workplaces as a precondition for receiving federal grants.

While no state provides clear employment protection for recreational marijuana use, several states provide explicit employment protection for medical marijuana use. In New York, an employer cannot discriminate against a “certified” patient (one who is deemed to have a disability) only because of the certified medical use or manufacture of marijuana. In addition, New York employers must reasonably accommodate the disability associated with the legal marijuana use. (New York Health Law, Title V-A, § 3369(2)).

Unfortunately, New Jersey does not yet have employment protections regarding hiring and firing decisions based on medical marijuana use. Recently, a federal court in New Jersey held that neither the New Jersey Compassionate Use Medical Marijuana Act (CUMMA, N.J.S.A. 24:6I-1 et seq.) nor the New Jersey Law Against Discrimination (LAD, N.J.S.A. 10:5-12) obligates an employer to waive its requirements for employees to pass drug tests, including testing for marijuana. In Cotto v. Ardagh Glass Packing, CV-18-1037 (D.N.J. 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 advised his employer that he would not pass the drug test because of his medically prescribed medications, including medical marijuana. Ardagh refused to relax the drug testing requirement and placed Cotto on indefinite suspension. Cotto filed suit claiming the company discriminated against him by failing to accommodate his disability and retaliating against him because of his disability. The Court found that while CUMMA decriminalizes medical marijuana usage, it does not require employers to permit the use of medical marijuana in the workplace. The Court also 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 is not a protected activity.

Employment protections for medical marijuana users in New Jersey are on the way. State Assembly Bill 1838, introduced in January 2018, would amend CUMMA, prohibiting employers from taking adverse actions 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 lawful medical marijuana impairs their ability to do their job. If you have any questions or concerns regarding how the lawful use of medical marijuana may affect your employment, you may want to consider contacting an employment lawyer.

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