The New Jersey Legislature has passed an expansion of the state’s medical marijuana programs that ensures greater patient access, adds eligible conditions more rapidly, removes barriers for use by minors with serious health conditions, and increases supplies of the product.
But even as New Jersey’s laws begin to shift, cannabis is still classified as a Schedule I substance under federal law and is illegal to use, even for medical purposes.
New Jersey’s medical marijuana law, however, does let individuals with a valid prescription purchase and consume cannabis legally. And for the first time, the legislation provides job protection to employees that use medical marijuana.
“Medical marijuana raises more questions than answers about drug tests and employee rights,” says John Sarno, president of the Employers Association of New Jersey (EANJ).
“The law makes it clear that employees can’t be under the influence [of marijuana] during working hours, but the standard for taking corrective action is quite high — no pun intended,” Sarno says.
The law requires that employers have strong evidence that the lawful use of medical marijuana has impaired the employee’s ability to perform his or her job responsibilities.
Moreover, there is no specific language regarding medical marijuana-using employees in safety-sensitive positions in New Jersey’s law. Those so-called carve-outs exist in other states.
“For now, the bottom line for employers is that they can’t take corrective action against medical marijuana users simply because they test positive to a drug test. There must be strong evidence of impairment,” Sarno says.
Sarno says he believes that the lack of any carve-outs places employers with safety-sensitive jobs at risk.
“I don’t think employers want to wait until there is evidence of impairment when people are operating a forklift or other machinery. By then a serious injury could be imminent.”
Compounding the problem is that marijuana drug tests are still imprecise and do not tell employers when cannabis was used or if there is enough in someone’s system for them to be considered impaired.
Most legal experts believe that the best practice is to treat medical marijuana like other impairing — but legal — drugs like Percocet: If an employer notices significant signs of impairment or dangerous behavior, they should document it and keep that employee from doing anything dangerous, like operating machinery.
In response to these complex issues and members’ pressing needs, the EANJ has launched a Medical Marijuana Resource Toolkit with legal summaries and best practices, available online at www.eanj.org.
Some highlights from the guide: Although federal law currently prohibits the use of marijuana, New Jersey permits the use of marijuana for medical purposes. Individuals can be prescribed marijuana to treat a debilitating medical condition, including chronic pain; epilepsy; glaucoma; AIDS; PTSD, anxiety disorder; cancer; and other conditions approved by the Department of Health.
To be eligible for the program, patients must be new Jersey residents with a prescription from a healthcare practitioner with whom they have a bona fide relationship. Patients who meet these criteria are issued a card, and out-of-state medical marijuana program cards are not recognized.
Even with the card, patients cannot operate vehicles or heavy equipment while under the influence, or smoke in a school bus, public transportation, schools, jails, public parks and beaches, and other prohibited locations.
An employer need not accommodate the medical use of marijuana in any workplace.
The law does not require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana.
There is a trend in the workers’ compensation courts finding that claimants are entitled to marijuana coverage under their claim, although provider networks, pharmacy benefit programs, and direct medical provider contracts do not apply to medical marijuana. Workers’ compensation claimants who are authorized to use the drug must pay out of pocket and be reimbursed by the insurance carrier when ordered by a court.
Marijuana remains classified as an illegal drug under the federal Controlled Substances Act. Thus, the Department of Transportation’s Drug and Alcohol Testing Regulation — 49 CFR Part 40, at 40.151(e) — does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result. Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.”
Employers may conduct pre-employment drug testing and during the course of employment. If an employee or job applicant tests positive for marijuana, the employer shall offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result, and shall provide written notice of the right to explain to the employee or job applicant.
Within three working days after receiving notice, the employee or job applicant may submit information to the employer to explain the positive test result, or may request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense. As part of an employee’s or job applicant’s explanation for the positive test result, the employee or job applicant may present an authorization for medical marijuana issued by a health care practitioner, a registry identification card, or both.
Unless an employer establishes by a preponderance of the evidence that the lawful use of medical marijuana has impaired an employee’s ability to perform the employee’s job responsibilities, it is unlawful to take any adverse employment action against an employee who is a qualified registered patient using medical marijuana based on either: (1) the employee’s status as a registry identification cardholder; or (2) the employee’s positive drug test for marijuana components or metabolites.
“Adverse employment action” means refusing to hire or employ a qualified registered patient, barring or discharging a qualified registered patient from employment, requiring a qualified registered patient to retire from employment, or discriminating against a qualified registered patient in compensation or in any terms, conditions, or privileges of employment.
An employer may consider an employee’s ability to perform the employee’s job responsibilities to be impaired when the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.
Specific articulable symptoms while working that decrease or lesson the employee’s performance of duties or tasks of the employee’s job position include speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in an accident or other carelessness that results in an injury to the employee or others, significant deterioration in work performance, absenteeism, or an individual’s appearance indicating substance abuse.
State and federal law require employers to use their best efforts to provide a reasonable accommodation to qualified persons with disabilities unless it imposes an undue hardship. As the individual holding a valid patient card may suffer from a disability, employers may likely need to make a good faith effort to provide a reasonable accommodation, unless it is an undue hardship to do so, i.e.: poses a substantial risk of harm or safety. A medical opinion may be warranted.
An employer may prohibit, or take adverse employment action for, the possession or use of intoxicating substances during work hours. Additionally, nothing in the law requires an employer to commit any act that would cause the employer to be in violation of federal law, that would result in a loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.