Chartwell Law: Marijuana in the Workplace: Uncertainty and Risks for Employers

Employers continue to grapple with New Jersey’s marijuana laws. First enacted in 2010, and amended in 2019, the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA) legalized the medicinal use of marijuana. More recently, the state legalized the recreational use of cannabis when it enacted the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). Together, these laws provide a framework for the use and regulation of marijuana in New Jersey. With that said, recent cases have shined a light on the risks and uncertainty employers continue to face over marijuana in the workplace.

Within the last two weeks, a prospective employee filed suit against a trucking company alleging violations of the state’s anti-discrimination laws. The basis of the complaint focuses on the employee’s status as a licensed patient under New Jersey’s medical marijuana program. In Hunt v. Matthews International Corp. et al.,[1] the plaintiff alleges that the employer refused to hire him after a pre-employment drug screen returned a positive THC result. Mr. Hunt claims that he disclosed his status as a licensed medical marijuana patient before the test and also made multiple attempts to discuss same with the defendant. After allegedly making no effort to speak with him, Mr. Hunt claims that the employer withdrew an offer of employment in violation of CUMCA and New Jersey’s anti-discrimination laws. [2]

Though this case is still in the early stages of litigation, it highlights the competing interests of employees and employers under New Jersey’s cannabis laws.

On the one hand, both laws have created strong protections for employees and applicants. Both the CUMCA and CREAMMA expressly prohibit adverse employment actions based solely on the employee’s status as a registered patient under the state’s medical marijuana program or as a result of a positive THC test. [3] On the other hand, neither law restricts an employer’s right to promote a drug- and alcohol-free workplace,[4] nor does either law prohibit an adverse employment action if the employee is using cannabis at work, or noticeably under the influence.[5] The devil, as they say, is in the details.

As seen in Hunt v. Matthews, drug testing is a major source of contention. To be clear, CREAMMA allows for multiple forms of drug testing: pre-employment screening; reasonable suspicion of use at work; following a work-related accident; or, randomly pursuant to an employer’s drug-testing policy.[6] With that said, the Act imposes two significant restrictions on that testing. The drug test must include both “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva;” and (2) a physical evaluation performed by “an individual with the necessary certification to opine on the employee’s state of impairment…related to the use of cannabis.”[7]

Fortunately, the governing body responsible for establishing the certification process – the New Jersey Cannabis Regulatory Commission (CRC) – has temporarily waived the second prong pending adoption of formal rules.[8] With that said, it remains to be seen how the courts will address the waiver, not to mention how long it will last. And in the absence of a physical examination, it remains difficult for employers to determine whether an employee is “under the influence,” given that THC can remain in the body days after ingestion.

There are additional considerations under the medical marijuana law. If a drug test comes back positive for THC, employers are required to notify the employee, in writing, of their right to provide a “legitimate medical explanation” for the positive result.[9] The employee then has three working days to provide the necessary information which can include authorization for medical cannabis, proof of registration in the state’s medical marijuana program, or both.[10] Assuming Mr. Hunt’s allegations are true, these are the specific failings that landed Matthews International in court.

Employment practices are not the only concern. In the realm of New Jersey workers’ compensation, employers are also navigating the unique implications of medical marijuana. Most recently, the New Jersey Supreme Court addressed the Compassionate Use Act in Hager v. M&K Construction.[11] Here, the court determined that medical marijuana prescribed to treat an injured worker may constitute reasonable and necessary care under The New Jersey Workers’ Compensation Act.[12] As a result, the court ordered the employer to reimburse Mr. Hager for the ongoing costs of his medical marijuana.

As a last-ditch effort to thwart compensability, the employer in Hager argued that compliance with the court’s order to reimburse medical marijuana expenses violates federal U.S. drug policy, specifically, the Controlled Substances Act. Under federal law, marijuana is still listed as a Schedule I drug, and the employer argued that payment of same would constitute a crime. The court addressed this concern by citing the federal government’s reluctance to interfere with state medical marijuana laws and concluded that actions in accordance with a court order would not qualify as aiding and abetting a crime.

As a result, the precedent set by Hager has created greater access to medicinal marijuana in the workplace. Accordingly, employers must also consider an injured worker’s treatment for authorized medical marijuana to avoid discriminatory practices.

Chartwell Law will continue to monitor the Hunt v. Matthews case as it proceeds through litigation, along with developments on medical marijuana treatment in the workers’ compensation system. In the meantime, employers should consider reviewing, and updating, their drug-testing policies with the benefit of experienced counsel. This may include suspending certain types of drug-testing, or in the alternative, training management on reasonable suspicion determinations.

[1] NJ Superior Court, Law Division Hudson County, Case Number 00218-22, Complaint filed January 18, 2022.

[2] It is important to note that this history is taken directly from the plaintiff’s allegations in his complaint. As of the circulation of this article, an Answer to the Complaint has not yet been filed, and these facts have not yet been established in a court of law.

[3] N.J. Stat. § 24:6I-6.1(a); N.J. Stat. § 24:6I-52(a)(1).

[4] N.J. Stat. § 24:6I-52(b)(1)(a).

[5] N.J. Stat. § 24:6I-6.1(c)(1).

[6] N.J. Stat. § 24:6I-52(a)(1).

[7] N.J. Stat. § 24:6I-52(a)(1).

[8] CRC Initial Rules, 17:30-2.1(e), August 21, 2021.

[9] N.J. Stat. § 24:6I-6.1(b)(1).

[10] N.J. Stat. § 24:6I-6.1(b)(2).

[11] 247 A.2d 864, 246 N.J. 1 (2021).

[12] The Court stressed that, as with other treatment, competent medical testimony is still required to establish that medical marijuana is reasonable and necessary care under New Jersey’s workers’ compensation scheme. 247 A.2d 864, at 877-78

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