Category Archives: Medical marijuana in the workplace

WHAT ARE YOU SMOKING? New Jersey’s New Cannabis Law Also Changes the Rules for Employers

Medical Marijuana Act, Medical marijuana in the workplace, Tips for Employers March 9, 2021 Leave a comment

As New Jersey enters a new era of legalized cannabis, employers face a whole new crop of questions about responding to employee cannabis use.  The newly passed New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”) changes the landscape for employers both in concrete ways and in ways that are still evolving.  On its face, NJCREAMMA allows employers to discipline employees for use of cannabis during work but prohibits them from taking adverse action against employee use outside of work. Although that principal seems straightforward, it is not. For an employer, determining when an employee consumed cannabis or whether they are actually impaired is quite challenging. The NJCREAMMA recognizes a positive cannabis test does not necessarily mean an employee is impaired at work and, therefore, limits employers’ ability to rely on tests alone. Until the science catches up to the law, employers do not yet have access to a reliable, objective measure to test for impairment at work, which makes it impossible to conclude an employee is impaired due to cannabis use based on testing alone.

What’s new?

As you may know, before the passage of this new 2021 law, the New Jersey Courts already ruled employers could not discriminate against employees lawfully enrolled in the State’s medical cannabis program and had to make reasonable accommodations for them. In practice, this body of case law, with limited exception, meant employers should not fire or refuse to hire someone who tested positive for cannabis if they had a medical use card.  Employers remained free to take adverse employment action against employees who showed signs of impairment and employees who tested positive but were not enrolled in the State’s medical cannabis program.

With the passage of NJCREAMMA, the scope of employee protections have materially expanded. Now, with limited exception, New Jersey employers may not take any adverse employment action (including refusing to hire a candidate) solely because the employee tests positive for cannabis. Employers can and should still prohibit impairment in the workplace. However, even when an employee is suspected of impairment, employers cannot act based on a positive test alone. Instead, NJCREAMMA requires that the employer also conduct a physical evaluation to determine whether an employee is impaired before it takes action based on a positive test. This physical evaluation must be performed by someone certified as a Workplace Impairment Recognition Expert. Although the State-created Cannabis Regulatory Commission is tasked with implementing guidelines for Workplace Impairment Recognition Expert training, it has not yet developed this training or guidelines. Until it does, this part of NJCREAMMA is not considered “operative” even though the law is deemed effective immediately. 

Aspects of NJCREAMMA’s employee protections, which do not have specific exemptions for safety related positions and require Workplace Impairment Recognition Expert training, are controversial and certain business groups are pushing for employee protections to be scaled back in the “clean up” bills that are expected to be introduced to try to refine NJCREAMMA. Due in part to the well-publicized political wrangling that preceded the Legislature’s final adoption of NJCREAMMA, employers should expect to see efforts to clarify the law as it applies to employers and to authorize common-sense controls on impairment in the workplace.

Employers are still permitted to conduct suspicion-based, pre-employment, random, and/or post-accident drug testing, but a positive test for cannabis alone is not enough to take action. Now, employers also must have evidence of impairment during work hours to take action. 

NJCREAMMA does allow employers to implement more strict rules for drug use when it is necessary to maintain a federal contract. 

NJCREAMMA does not restrict an employer from maintaining and enforcing drug-free workplace policies, but, again, when it comes to cannabis, employers must show use and/or impairment at work, as opposed to off-duty use. 

Savvy Employers’ Takeaways:

Practically, when it comes to cannabis, employers can focus on performance issues without attributing the source of the performance issue to cannabis impairment. Behaviors that might suggest drug use, such as sleeping on the job, carelessness, and lack of attention are properly the subject of discipline whether or not the employee is impaired by cannabis use or for another reason. NJCREAMMA, in its current form, makes it harder for employers to rely on testing as evidence of impairment, but does not restrict an employer from taking action based on observable impairment or performance issues. Although it may seem like new territory, employers have historically managed employee productivity issues, whether they arise from unknown causes or from use of legal substances, such as hangovers from alcohol abuse and performance deficits from use of prescription medications. Employers do not need drug tests to manage these issues but, instead, focus on the business disruption and observable performance issues. For now, employers would be wise to do the same when it comes to cannabis. 

Questions? Let me know.

Supreme Court of NJ Affirms Employee May State A Claim for Reasonable Accommodation for Medical Cannabis Use

Employment Non-Discrimination Act, Medical Marijuana Act, Medical marijuana in the workplace, Uncategorized March 13, 2020 Leave a comment

medical marijuana

You may recall, in 2019, this blog post reported New Jersey’s Appellate Division joined courts that found an employee may be able to state a disability discrimination claim against an employer who takes an adverse employment action due to the employee’s use of medical cannabis.  That case, Wild v. Carriage Funeral Holdings, Inc., was one in a spate of recent decisions as courts in New Jersey and other states that allow medical use of cannabis have grappled with reconciling laws protecting employees from disability discrimination, employers’ rights to maintain workplaces free of drug use, and federal statutes outlawing cannabis use for any reason. Early decisions in these cases came down in favor of employers, permitting employers to discipline, terminate, or refuse to hire employees who use medical cannabis, even without evidence of use or impairment in the workplace.

New Jersey’s Appellate Division’s Wild ruling changed course when it held an employee may state a disability discrimination claim for failure to accommodate against an employer who takes an adverse employment action due to the employee’s use of medical cannabis.  Now, on March 10, 2020, the Supreme Court of New Jersey affirmed the decision, ruling an employer can potentially be liable under New Jersey’s Law Against Discrimination (“LAD”) for failing to accommodate an employee’s use of medical cannabis outside of the workplace.

What Happened?  In 2015, the employee, a funeral director, was prescribed and used medical cannabis as authorized by New Jersey’s Compassionate Use Act. In 2016, the employee was in an auto accident while working. The employee advised hospital staff he was authorized to use medical cannabis. The treating doctor responded that “it was clear [the employee] was not under the influence of cannabis [and, thus, his cannabis use was not a cause of the accident], and therefore no blood tests were required.”

While the employee recuperated, the employer advised that a blood test was required before the employee could return to work. The employee went to a facility to take a urine and breathalyzer test; however, the results were not provided to the employer and were not part of the case record.

The employee eventually returned to work, but, his supervisor advised him that his employment was “being terminated because they found drugs in your system”, though no test results had been provided to the employer. In a subsequent letter, the company told the employee it had terminated him not because of his drug use, but because he failed to disclose his use of medication contrary to company policy. The employee brought an action alleging he had been a victim of disability discrimination.

What did the Courts decide?  The trial court dismissed the employee’s claims, finding that New Jersey’s Compassionate Use Act “does not contain employment-related protections for licensed users of medical cannabis.” The employee appealed.

On appeal, a three-judge panel of New Jersey’s Appellate Division reversed the dismissal. The Appellate Division cannabis found that the LAD might require such an accommodation. Although the Compassionate Use Act does not make illegal an employer’s adverse action against an employee for medical cannabis use, by the same token, the Appellate Division stated it does not immunize an employer’s conduct that might otherwise have been a violation of the LAD.  In affirming the decision, the Supreme Court held an employee may state a failure to accommodate claim under the LAD against an employer who takes an adverse action against the employee for use of cannabis outside of work when that use is otherwise compliant with the Compassionate Use Act.

What do employers need to know?  It is important to understand neither the Appellate Division nor the Supreme Court ruled this employee was a victim of disability discrimination. In fact, the Appellate Division expressly recognized that the case was at the earliest stages, and the employer had pled potentially valid defenses.  The Court ruled only that the case could not be dismissed on its face.

New Jersey employers need to be mindful that they no longer have a free pass to take adverse employment actions against employees and candidates solely because they use medical cannabis outside of the workplace.  It is important to note, the courts in New Jersey have not suggested an employer must accommodate impairment due to medical cannabis use, so employers should remain vigilant about addressing employee impairment issues.  The law as to when an accommodation is reasonable is still developing.  For instance, a requested accommodation that may make an employer ineligible to bid on certain projects or that conflicts with established safety laws and regulations will be subject to greater scrutiny than a requested accommodation that does not impose added burdens on the employer.

In other words, stay tuned, because we have certainly not heard the last word on this topic.

Questions? Let me know.

 

2019 Law At Work – Year In Review

Medical Marijuana Act, Medical marijuana in the workplace, Overtime Rules, Tips for Employers, Wage & Hour December 23, 2019 Leave a comment

New Year 2020 Loading Bar ConceptThey say the only thing in life that is constant is change, and we certainly saw that in 2019.  This was a big year for change in employment law as legislators, courts, and regulators, shaped the workplace to reflect societal changes.  The changes we saw included new requirements that address continued fallout from the #MeToo movement, concerns about wage distribution and equity, and balancing the rights of employers and unions.  Coupling these legal changes with competitive pressures due to labor shortages in certain industries, the stakes are higher than ever for employers.  We are seeing rapid change in the workplace and now is not the time fall behind.  In case you missed it, here are some issues that we brought to employers this year:

New 2020 Overtime Rule Means Employers Must Reevaluate Which Employees Are Overtime Eligible 

As you may recall, the U.S. Department of Labor released a Final Rule which was to go into effect on December 1, 2016, but, due to a court-issued injunction, followed by change of administration, it never did.  Now, we have an updated version that goes into effect on January 1, 2020.  Although the proposals leading up to these new rules garnered a lot of ink, the new rules make some changes that were not expected and maintain the status quo in areas that were expected to change. The DOL says the increase in salary thresholds will boost wages for 1.3 million U.S. workers. More here.

What Employers Need to Know About New Jersey’s Tough New Wage Theft Law 

On August 6, 2019, New Jersey amended its Wage and Hour Law and adopted the new Wage Theft Act (WTA), creating one of the toughest wage and hour enforcement laws in the country.  This law puts a high burden on employers and imposes significantly increased liability for employers who fail to pay wages owed, including potential jail time.

Click here to read more about what this means for employers and what employers should do to protect themselves from liability under the WTA.

New Jersey Prohibits Employers From Asking Prospective Employees About Their Salary Histories  

Beginning in January, employers will no longer be able to screen job applicants based on their wage or salary history, or inquire about their historical salary, compensation and benefits. However, a prospective employee may still voluntarily provide salary information. The bill doesn’t go into effect until January 25th, but employers should be preparing to amend their recruitment processes before it is enacted.

Practically, this law means employers will need to rely on measures other than a candidate’s salary history in setting compensation, including internal pay policies and market-based analysis. Click here to learn more.

SCOTUS Rules Requirement to File Charge Before Suing Under Title VII is Nonjurisdictional: Employers Must Raise Defense Timely 

The main takeaway from the opinion named in this legal alert is that employers faced with violations of Title VII must be careful to promptly raise the defense, when available, that the employee failed to file a charge with the EEOC within the allotted time period. In many Circuit Courts of Appeal, including the Third Circuit, this has long been the law, while in other Circuits, employers could raise this defense at any time. Now, all employers must raise it timely. Employers and their counsel should be careful to do so.

If you are facing any complaints under Title VII and/or any state equivalents, click here to read about this case in more detail.

New Jersey Creates Employment Protections for Medical Cannabis Patients and Providers

In addition to the range of court decisions that shape how employers treat employees who use medical cannabis, in July, New Jersey’s legislature weighed in with new requirements. Now, no matter how an employer ultimately chooses to treat employees and applicants who use medical cannabis lawfully under the Jake Honig Compassionate Use Medical Cannabis Act, employers need to amend their drug screening programs and hiring processes to ensure that they are in compliance with this law. Employers also need to consider whether they will accept a valid medical explanation as a basis to disregard a positive test, especially in light of recent court rulings that may create liability for employers who take adverse action against employees and applicants who use medical cannabis in accordance with state law. Click here to learn more.

New Jersey Requires Pre-Tax Transportation Fringe Benefits 

The federal Tax Cuts and Jobs Act of 2017 eliminated a federal tax deduction for employers which had allowed them to deduct the cost of providing qualified transportation benefits to employees (thereby removing the tax incentive for employers to do so). In response, earlier this summer New Jersey enacted “An Act Concerning Pre-Tax Transportation Fringe Benefits” requiring all New Jersey employers with 20 or more employees to offer employees the opportunity to set aside wages on a pre-tax basis for the purchase of qualifying transportation services, such as transit passes and commuter highway vehicle travel. Click here to learn more about what this means for employers, including next steps and how to ensure your company is in compliance.

What Employers Need To Know: New Jersey’s Appellate Division Issues Historic Ruling On Medical Marijuana Users’ Rights in the Workplace

New Jersey employers need to be mindful that they no longer have a free pass to take adverse employment actions against employees and candidates solely because they use medical marijuana; those affected by such decisions will be emboldened by this new case, and their lawyers will be confident that a lawsuit challenging the adverse actions is more likely to survive a motion to dismiss at the beginning of the case. As the law in New Jersey now stands, employers are not required to accommodate medical marijuana use, but there is now an increased risk if they refuse. Additionally, various bills have been proposed and are being considered by the New Jersey legislature, which, if adopted, may expand employee rights in this area of the law.

As of right now, employers remain free to take adverse action if an employee shows any sign of impairment from use of medical marijuana, or, for that matter, any other drug, legal or not. More here.

Medical Cannabis Goes to Work 

Employers who take action against a candidate or employee based on a positive result for cannabis when the employee has a valid medical authorization and no evidence of impairment should be prepared for a fight.  Employees and their lawyers are looking for these cases in many states to try to change the law. Employers need to decide if screening out medical cannabis users is worth the risk of a potentially expensive court battle. More here.

Unions High on Cannabis 

As businesses across the country look to capitalize on the “green rush” from states’ expanded medical and adult use cannabis laws, unions are also eager to take advantage of the opportunities presented by this burgeoning, and quickly maturing, industry.  For instance, the United Food and Commercial Workers International Union has formed a cannabis-focused division and is actively representing cannabis workers in many states and seeking to expand to others.  These unions may also get a boost from legislative action in certain states.  Under New Jersey’s proposed cannabis expansion law, for example, licensee applicants who have entered into a labor peace agreement or a collective bargaining agreement receive preference in the license competition.  Expect unions to seek to represent workers in cannabis-related construction, retail, farming, cultivation, security, and processing.

Employers operating in and/or servicing the cannabis industry should consider and plan for the potential impact of labor unions in their industry.

Walmart Takes a Seat in California 

Earlier this year, Walmart reportedly agreed to pay $65 million to settle a case brought on behalf of nearly 100,000 current and former California cashiers who claimed the company violated their rights under a state law dating back to 1911 when it failed to provide them with seating.  The workers claimed Walmart, which denied any wrongdoing, breached its duty to make seating available “when the nature of the work reasonably permits.” This case is a friendly reminder that employers need to look carefully at their duty to offer reasonable accommodations to employees and to engage in an interactive process to make sure that the employer can justify any denied accommodation. More here.

What New Jersey’s New Law On Employment Contracts Means for Employers: Are Non-Disclosure and Arbitration Provisions Out? 

On March 18, 2019, New Jersey Governor Phil Murphy signed a new law, which, among other things, bars employers from requiring employees to sign or enforcing employment contracts that require employees to agree to waive certain rights or remedies and bars agreements that conceal details relating to discrimination claims. Click here for a checklist of what employers need to know, including what this law prohibits and applies to in the workplace.

Questions? Let me know.

What Employers Need To Know: New Jersey’s Appellate Division Issues Historic Ruling On Medical Marijuana Users’ Rights in the Workplace

Medical Marijuana Act, Medical marijuana in the workplace, Wrongful Termination April 2, 2019 Leave a comment

Marijuana Medical PrescriptionEver since the use of properly prescribed medical marijuana became legal in New Jersey, Courts have grappled with reconciling state and federal laws protecting employees from disability discrimination, and employers’ rights to maintain workplaces free of drug use. In simple terms, New Jersey law permits the use of medical marijuana, which is illegal under federal law. With limited exceptions, the decisions in these cases have come down in favor of employers’ right to enforce workplace drug rules. Generally, courts have permitted employers to discipline, terminate, or refuse to hire employees who use medical marijuana, even if there is no evidence of use or impairment in the workplace.

This week, New Jersey’s Appellate Division joined the minority of courts that have found an employee may be able to state a disability discrimination claim against an employer who takes an adverse employment action due to the employee’s use of medical marijuana.

What Happened?

In 2015, the employee, a funeral director, was diagnosed with cancer and was prescribed and used medical marijuana as authorized by New Jersey’s Compassionate Use Act as part of his treatment. In 2016, the employee was in an auto accident while working and he was taken by ambulance to a hospital. The employee advised hospital staff he was authorized to use medical marijuana. The treating doctor responded that “it was clear [the employee] was not under the influence of marijuana [and, thus, his marijuana use was not a cause of the accident], and therefore no blood tests were required.”

While the employee recuperated, his father took his medical prescription and marijuana license to his son’s supervisor and explained what had happened and why the hospital had not given a drug test. Later that day, the employer called and spoke to the employee’s father to advise that a blood test was required before the employee could return to work.

Later that evening, the employee went to a facility to take a urine and breathalyzer test; however, the results of those tests were not provided to the employer and were not part of the case record.

The next day, the employee returned to the funeral home, not as an employee, but because a close friend’s family member had died. While there, he and his supervisor spoke briefly about his job status. His supervisor said he had not heard from “corporate” but did not see how it would be a problem since the employee had a prescription for his marijuana use. The employee told the supervisor, “I only take it when I am home, not at work because I don’t want to jeopardize my license for what I have worked so hard for.”

The employee eventually returned to work, but, shortly after his return, his supervisor advised him that “corporate” was unable to “handle” his marijuana use and that his employment was “being terminated because they found drugs in your system”, though no test had actually been provided to the employer. In a subsequent letter, the company told the employee it had terminated him not because of his drug use, but because he failed to disclose his use of medication that might adversely affect his ability to perform his job duties. According to a company policy, “employees must advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely.”

The employee brought an action alleging he had been a victim of disability discrimination.

What did the Courts decide?

The trial court dismissed the employee’s claims, finding that New Jersey’s Compassionate Use Act “does not contain employment-related protections for licensed users of medical marijuana.” The employee appealed.

On appeal, a three-judge panel of New Jersey’s Appellate Division reversed the dismissal in a unanimous decision. The Appellate Division acknowledged that the Compassionate Use Act unambiguously states it does not “require . . . an employer to accommodate the medical use of marijuana in any workplace.” Nevertheless, the appellate panel found that the New Jersey’s Law Against Discrimination might require such an accommodation. Although the Compassionate Use Act does not make illegal an employer’s adverse action against an employee for medical marijuana use, by the same token, the Appellate Division stated it does not immunize an employer’s conduct that might otherwise have been a violation of the Law Against Discrimination. For this reason, the Appellate Division reversed the trial court’s dismissal and permitted the case to proceed.

What do employers need to know?

At the outset, it is important to understand that the Appellate Division did not rule that this employee had been a victim of disability discrimination. In fact, the Court expressly recognized that the case was at the earliest stages, and the employer had pled potentially valid defenses.  The Court ruled only that the case could not be dismissed on its face.

Although this precedent is now binding on state trial courts in New Jersey, it is far from settled law, and may well be subject to an appeal to the New Jersey Supreme Court. However, New Jersey employers need to be mindful that they no longer have a free pass to take adverse employment actions against employees and candidates solely because they use medical marijuana; those affected by such decisions will be emboldened by this new case, and their lawyers will be confident that a lawsuit challenging the adverse actions is more likely to survive a motion to dismiss at the beginning of the case. As the law in New Jersey now stands, employers are not required to accommodate medical marijuana use, but there is now an increased risk if they refuse. Additionally, various bills have been proposed and are being considered by the New Jersey legislature, which, if adopted, may expand employee rights in this area of the law.

In other words, stay tuned, because we have certainly not heard the last word on this topic. With that said, employers remain free to take adverse action if an employee shows any sign of impairment from use of medical marijuana, or, for that matter, any other drug, legal or not.

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If you have any questions about this legal alert or if you run across a related issue in your workplace, please feel free to contact Adam Gersh or any other member of Flaster Greenberg’s Labor & Employment Department.

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