By: Cristina N. Hyde, JD

As the effects of New Jersey’s recent personal use cannabis legalization begin to percolate throughout the state, it is imperative that employers ensure that their practices and policies fairly recognize this evolving area of law.  When Governor Murphy signed cannabis reform into law last February, employers were already struggling to reconcile employee use of medicinal marijuana with their desire to maintain a drug-free workplace.  It is not unreasonable to expect that this struggle will be further confused by the new individual privilege of recreational use.

Therefore, as New Jersey awaits the publication of implementing regulations by the newly seated  Cannabis Regulatory Commission, and issues relating to medical marijuana use work their way thorough the judicial system, employers can begin to look to the state courts for some guidance.

• Wild v. Carriage Funeral Holdings Inc, 241 N.J. 285 (March 10, 2020): In this case, a licensed funeral director was diagnosed with cancer and prescribed marijuana under the NJ Compassionate Use of Medical Marijuana Act (“Compassionate Use Act”).  After being involved in a motor vehicle accident while working, and informing his treating doctor of his license to possess medical marijuana, he was fired despite the doctor’s conclusion that he was not under the influence at the time of the accident. The lawsuit was predicated on unlawful discrimination based on a disability, which required the use medical marijuana off-site.  Addressing the right to pursue a claim under the Law Against Discrimination, the New Jersey Supreme Court concluded that the NJ Compassionate Use of Medical Marijuana Act (“Compassionate Use Act”) did impact the plaintiff’s existing employment rights. Therefore, the Supreme Court held that when giving the plaintiff’s allegations “every reasonable inference of fact,” he had properly stated a claim.
• Hager v. M&K Construction, A-64 (N.J. Apr. 13, 2021): Affirming the appellate court’s decision of May 12, 2020, the New Jersey Supreme Court concluded that the defendant-employer was responsible for the reimbursement to an injured worker for their out-of-pocket cost for medical marijuana. The Court also ruled that the Compassionate Use Act, as applied to this case, is not preempted by the federal Controlled Substances Act.

Notably, Assembly Bill No. 21,  addressing the legalization and decriminalization of adult use cannabis, does address employer policies for the use and consumption of recreational marijuana; stating, among other things, that an employer is not required to accommodate the use of legal marijuana by employees while at work.  You can find a more in depth discussion of Assembly Bill No. 21 here.

Campanella Law Office anticipates that this will be a rapidly expanding area of law and will keep you informed of any important developments.  We strongly recommend that any current policies related to maintaining a drug-free workplace employee drug testing undergo review.  If you would like assistance drafting new or reviewing current policies pertaining to your business, please do not hesitate to Contact Us.