Many employers have longstanding zero tolerance drug use policies. With the growing number of states passing laws that decriminalize medical and/or recreational marijuana use, the application of these policies become murky. In the realm of medical marijuana, there is a growing body of case law interpreting whether or not employers must make reasonable accommodations for employees that a hold a valid medical marijuana certification.

A federal court in New Jersey recently ruled on a case that involved a forklift operator who was injured at work and directed to take and pass drug tests as a condition of continued employment. In response, the employee explained that he was prescribed drugs for pain management including Percocet, Gabapentin, and marijuana, for injuries he incurred prior to his employment with the company. When his employer refused to allow him to return to work, the employee claimed he was discriminated against by due to the requirement that he pass both a breathalyzer and a urine test in order to return to work.

The employee’s use of marijuana for pain management points to the tension between state and federal law. On one hand, marijuana is a Schedule 1 drug under the Controlled Substances Act, and has no accepted medical use under federal law. On the other hand, the New Jersey Law Against Discrimination (LAD) forbids “any unlawful discrimination against any person because such person is or has been at any time disabled or any unlawful employment practice against such person, unless the nature and extent of the disability reasonably precludes the performance of the particular employment.” Additionally, the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) was enacted in 2010 to decriminalize the use of medical marijuana.

CUMMA essentially affords an affirmative defense to patients who are properly registered under the statute and are subsequently arrested and charged with possession of marijuana. However, despite, this provision for criminal immunity, the statute also clearly states, “[n]othing in this act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.”

Ultimately, the court held that neither LAD or CUMMA require an employer to waive a drug test as a condition of employment for federally-prohibited substance such as marijuana. The court relied on the fact that marijuana is still illegal at the federal level, and that the relevant New Jersey statutes merely decriminalize medical marijuana but do not require employers to make reasonable accommodations.

Other states in the U.S. enumerate stronger protections for use of medical marijuana in their correlating statutes. Accordingly, due to the ever-changing legal landscape of state laws concerning expanding the legality of marijuana for medical and recreational purposes, employers are well advised to seek legal counsel prior to taking any adverse action against an employee who is found to be using marijuana.

Cotto v. Ardagh Glass Packing, Inc., 2018 WL 3814278, at *2 (D.N.J. 2018)