In New Jersey, employers are in a tough spot when it comes to employees who use marijuana for medical conditions. State law, specifically the Compassionate Care Act, authorizes the dispensation of medical marijuana to patients with certain chronic conditions.
It might be tempting to think that because of this, someone with a medical marijuana card should be allowed to smoke their medicine and come in to work the next day without worrying about being fired for failing a drug test. After all, their pot is legally sanctioned, right?
Not so fast, says Jill Cohen, a lawyer for Eckert Seamans Cherin & Mellott in Lawrenceville. Cohen, who represents businesses in employment law cases, says businesses that look the other way when their workers use medical marijuana risk being busted themselves in innumerable ways. That’s because according to federal law, marijuana is still entirely illegal. Until now, only enforcement policy has prevented the feds from busting state-sanctioned medical marijuana operations, and recent comments from the White House indicate that the new administration intends to crack down.
Cohen will speak on Monday, March 6, at 5:30 p.m. at the Greater Princeton Human Resources Association at the New Jersey Hospital Association Conference Center. Tickets are $45, $55 for nonmembers. For more information, call 609-924-5044 or visit www. hrma-nj.shrm.org/events.
“The law has a lot of ambiguities, both in the interplay between state law and federal law, and the New Jersey law itself. The problem for employers is that most people work, so these issues are going to come into the workplace. Employers can’t necessarily be on the forefront of the change in culture of how we treat marijuana as medicine until we have legal protections in place.”
As it turns out, New Jersey employers have the right to fire employees for failing mandated drug tests, Cohen says. As a federally illegal substance, marijuana is treated differently than legal drugs that might also impair someone’s ability to do their job. For example, an employee can’t be fired for using prescription opioid painkillers while off duty.
A law currently being considered by the state legislature would change the equation, and require medical marijuana to be treated like other prescription drugs. But in the meantime, patients and employers are in the weeds.
Some employers are required by law to drug test their employees. And an employer that lets employees use medical marijuana risks being sued, Cohen says. There are many scenarios where a company would be liable if one of its workers causes an accident after using medical marijuana.
“If somebody operating a commercial vehicle gets into an accident and tests positive for marijuana, how do you know if they were impaired at the time?” Cohen says. One of the gray areas of marijuana from a legal standpoint is the difficulty of determining if someone is “impaired” after using it. There are no commonly agreed-upon scientific tests for marijuana impairment. “Until the science is there and the testing is there, employers should not have to bear the risk of having an employee who could be impaired,” Cohen says.
The liability concerns are fairly obvious for truck drivers or any other occupation with a major safety component, but even office workers could cause liability. For example, someone could trip on a loose carpet and injure themselves, or crash a car while running an errand, Cohen says. Then there is the issue of an employee arguably violating federal law by using an illegal drug, she says. An employer could even open themselves to claims of discrimination if they enforce drug policies against illegal drug users while allowing medical marijuana card-holders to smoke freely.
New Jersey’s medical marijuana law is only a few years old, and there are fewer than 10,000 people in the state authorized to use medical marijuana. And because medical marijuana is allowed to be prescribed only for debilitating conditions, most of those people are not part of the workforce. Even so, the small number of working medical marijuana users have generated several important court cases.
In one recent case, a man sued his worker’s compensation provider to be reimbursed for the cost of his medical marijuana prescription. Andrew Watson, an Egg Harbor resident, had injured his hand with a buzz saw while working for 84 Lumber and was dealing with chronic pain. The judge ruled in Watson’s favor. Because it was an administrative case and not a Superior Court case, Cohen says, the ruling is unlikely to become legal precedent. However, she says, it may shape future medical marijuana decisions.
In a second major case, Davis vs. NJ Transit, a man was fired from NJ Transit for failing a drug test even though he had notified them that he was a medical marijuana card holder. The man sued, claiming discrimination, but the case was settled. Lawyers like Cohen, hoping the case would clear some of the smoke surrounding marijuana laws, were disappointed.
Cohen grew up in Connecticut with a pharmacist father, so she was raised with a healthy respect for the power of herbal drugs. A 2005 graduate of Fordham Law, Cohen has represented or trained a range of employers on such subjects as harassment, wages, and termination. Before becoming a lawyer, she was director of immigrant outreach in the Business and Labor Bureau of the Office of the Massachusetts attorney general.
Even if it seems harmless for someone with a medical marijuana card to use their prescription while off the job, Cohen says it is still risky to allow it. “There’s always somebody willing to sue for something,” she says. “Accidents can happen at any workplace. And I think adding somebody who would test positive for an illegal drug at work is always going to put the employer at risk until those drugs are not illegal anymore.”