How New Jersey Employers Can Avoid Getting Burned by Medical Marijuana Laws

New Jersey has joined the growing list of states to decriminalize recreational, as well as medicinal marijuana use. This is in direct conflict with federal law, which still classifies marijuana as a Schedule I controlled substance and has no medicinal use exemption. This conflict has the potential to create confusion for New Jersey employees and employers and can have substantial implications if addressed improperly. As medical marijuana becomes increasingly recognized for its therapeutic benefits, it’s important to understand how this intersects with workplace rights and obligations, particularly under the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD).

Due to the federal prohibition of marijuana use, courts have consistently held that the ADA does not require employers to accommodate the use of medical marijuana. In James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), the Ninth Circuit ruled that because the ADA does not protect illegal drug use, employers are not required to allow the use of medical marijuana as a reasonable accommodation. Thus, under the ADA, employers are within their rights to maintain drug-free workplace policies that prohibit marijuana use, even if it is for medical purposes.

New Jersey law, however, provides certain protections for medical marijuana users. The New Jersey Compassionate Use Medical Marijuana Act (CUMMA) initially did not explicitly protect employees who use medical marijuana. However, in 2019, the State passed expanded protections for medical marijuana users, including in the employment context.

NJLAD now prohibits employers from taking adverse employment actions against employees based solely on their status as medical marijuana patients. In Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416 (App. Div. 2019), the Appellate Division ruled that CUMMA does not preempt NJLAD, allowing the plaintiff to pursue claims of disability discrimination after being terminated for using medical marijuana outside of work hours. As of 2024, New Jersey employers cannot automatically disqualify an employee or applicant because they are a registered medical marijuana patient. Instead, employers are required to engage in an interactive process to determine if a reasonable accommodation can be made, such as a drug test waiver, without causing undue hardship to the business. It is important to note that accommodation requests must be explored and considered, and that it is not a per se violation if they are not acted upon if it would cause the employer undue hardship. Employers are permitted to enforce drug-free workplace policies, but  those policies must be applied in a manner consistent with NJLAD protections.

The intersection of federal and state laws on medical marijuana creates a complex regulatory environment for New Jersey employers that should be navigated with the assistance of an attorney. For New Jersey employers, the key is to engage in a thorough interactive process with employees and to craft workplace policies that comply with both federal and state laws. As this area of law continues to evolve, it is crucial to stay informed of legal developments and seek legal counsel when necessary to avoid potentially costly litigation.

About the Author

Robert Devaney, an associate with the firm, concentrates his practice in labor & employment law, education & school law, and family law. Robert focuses a large part of his practice on working with Military Veterans with their labor, employment, and family law matters. Having served in the United States Marine Corps for nine years before receiving his Honorable Discharge, Robert has a unique understanding of the issues that Veterans face in these areas. For example, he serves as legal counsel to the New Jersey Veterans Network.