Since it now appears that patients will soon be able to obtain medical marijuana in New Jersey, employers should consider how and whether they will accommodate offsite employee use of marijuana.
More than two years after the passage of New Jersey's Compassionate Use Medical Marijuana Act ("Act"), patients are now able to register and receive state-issued identification cards to obtain prescriptions for medical marijuana. Formal patient registrations began approximately two weeks ago, with the commencement of actual drug disbursements expected to occur this fall.
The allowance of patient registrations has been a long delayed part of what has been a difficult path in the implementation of the Act. Although the Act itself became effective October 1, 2010, it took more than a year before final regulations were passed and effective on December 19, 2011. Thereafter, many of the Alternative Treatment Centers ("ATC"), the entities given the authority under the Act to operate and dispense medical marijuana, faced their own legal obstacles in obtaining local zoning and other related approvals for their operations. So far, only two of the six state-approved ATCs, located respectively in Egg Harbor Township and Montclair, New Jersey, are expected to be in a position to commence distribution in the fall in light of the state's recent allowance of patient registrations.
Since it now appears that patients will soon be able to obtain medical marijuana in New Jersey, employers should consider how and whether they will accommodate offsite employee use of marijuana; the Act already states specifically that employers have no duty to accommodate on-site use. In addition, another critical issue that ultimately will need to be resolved under the Act is whether medical marijuana users are protected against adverse employment actions as a result of their authorized user status. While laws in several other states grant employees using medical marijuana specific protections from workplace discrimination due to their user status, the New Jersey Act is not as clear. Instead, the Act states only that medical marijuana users cannot be denied certain undefined "rights" and/or "privileges" due to their user status. So far, courts in other states with medical marijuana laws containing similar language (including in California) have determined that such language does not vest employees with any special workplace protections due to their registered user status. This means that in those jurisdictions, employers remain free to apply their drug-free workplace policies and testing programs against authorized medical marijuana users. Nevertheless, it remains to be seen how courts in New Jersey will ultimately address this issue, especially when, historically, New Jersey state labor and employment laws have been frequently construed broadly to protect employee rights.
Given the uncertainties surrounding how the Act will impact workplaces in New Jersey, it would be wise for employers to consider reviewing all workplace drug and alcohol rules and policies with the assistance of legal counsel to determine how best to respond to the workplace implications of medical marijuana use by authorized employees who are part of the company's workforce.