What Does Marijuana Legalization Mean For Your Business?
Michael Levenson September 19, 2018
As of today, there are eight states in the US that have legalized the use of recreational marijuana. New Jersey is currently poised to become number nine. Though popular support is growing, the legalization of marijuana places New Jersey business owners in a precarious position as marijuana remains illegal under the Federal Controlled Substances Act. Many employers, especially those with federal contracts, are reluctant to imply they would violate federal law by condoning the use of marijuana, even if it is permissible in their state. Moreover, many business owners are merely apprehensive due to stigma, client perception, and concerns over employee safety.
A particularly difficult position for employers is addressing an employee’s request to use marijuana as an accommodation for a disability. Case law on the topic does not provide a clear answer. Some states have found that an employer has no obligation to accommodate while other states have taken the opposite view. In the state of New Jersey, a Court recently ordered an insurance carrier to pay for medical marijuana treatment after the employee suffered an on-the-job accident. This decision may set the stage for greater acceptance of marijuana use despite that, under current law, employers are entitled to enforce a zero tolerance policy when it comes to medical marijuana. Should an employee request to use medical marijuana due to a disability, the employer may reject this accommodation but must still work to find reasonable alternative accommodation.
However, as the workplace grows less centralized with the rise of remote access, the modern workforce no longer operates exclusively in the office or between the hours of 9 to 5. Therefore, an employer that permits employees to use medical marijuana outside the office or normal working hours runs the risk of having these employees work while under the influence.
A recent example of this is a New Jersey man who was diagnosed with cancer and subsequently prescribed medical marijuana. While at work, the man was involved in an accident. Although he was not under the influence at the time of the accident, the employee failed a drug test and was terminated for violating the employer’s drug policy. The employee sued for disability discrimination and failure to accommodate under the New Jersey Law against discrimination. A Superior Court Judge dismissed the case, but it is on appeal and employers around the state are waiting for the result. Should the case stand, New Jersey employers may enforce a zero tolerance policy disciplines or terminates ploys found to have used marijuana, regardless of when the drug was used.
Also, proposed legislation seeks to add protection for those who use medical marijuana. If this legislation passes, employers will need to make difficult decisions on the technicalities of how to monitor off-duty use of medical marijuana. While an overly strict policy may trigger a lawsuit, too lenient of a plan may result in an employee working under the influence and a potential lawsuit against the company if the employee is involved in an accident.
In addition to addressing the use of medical marijuana, employers will need to respond to recreational marijuana use if it is legalized. While legislation on the issue is pending, the topic exposes business owners to litigation, regardless of the authenticity of the allegations.
As it stands, the current state administration endorses legalizing and medical marijuana use, but it also appears unlikely that the federal government will change its stance on the drug shortly. This places employers in an awkward position. Until a bill New Jersey is finalized, put into law, and tested in the Courts, the employer’s specific responsibilities will remain unclear.
We are following this issue for new developments.
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