There have been a plethora of cases nationwide surrounding the use of marijuana in an employment context. The caselaw is inconsistent and does not provide clear guidance for all possible workplace scenarios. As stated in an earlier blog post, in the New Jersey case Cotto v. Ardagh Glass Packing Inc, No. 18-1037 RBK/AMD, 2018 WL 3814278 (D.N.J. Aug. 10, 2018), the Court opined that nothing in CUMMA requires an employer to permit or accommodate the use of medical marijuana in the workplace.
Considering the murky state of law, employers are perplexed with handling marijuana use in an employment context particularly for medicinal use for "disabled" employees. This becomes an especially complex issue as more and more employees work remotely and nontraditional hours. In addition, marijuana drug testing, is generally permissible, only if a "reasonable suspicion" arises, in a pre-employment context and if a position is deemed "safety sensitive." Also, marijuana testing is imprecise so that one can test "positive" for use even if such use was not during working hours and such use did not impair the employee's performance at work. In addition, proposed New Jersey legislation would prohibit adverse employment actions against medical marijuana patients unless such use impairs their ability to perform their job duties.
With that said, what can prudent employers do?
*Train HR and supervisors on the effects of marijuana use, impairment, and safety risks that can occur due to usage and how to properly document same.
*Know that "disabled" employees are protected from discrimination (under Federal and New Jersey laws) and that all employers must engage minimally in an "interactive discussion" for an accommodation with an employee if the need for a "reasonable accommodation" comes to fruition.
*Consider and place into policy what would be considered "off duty" and "working hours" use of marijuana- keeping in mind remote employees.
*Recognize that employers currently do not have to accommodate medical marijuana use as per the Cotto case.
*Properly and promptly document all performance issues, accidents, and incidents in the workplace.
*Review and edit current policies on controlled substance use, drug free workplaces, and drug testing for legal compliance.
*Realize that if someone shows up to work clearly "high" or "stoned" (just as if someone showed up to work drunk), you can likely terminate or discipline that person for endangering your workforce and workplace.
*Recognize that a failed drug screen, for marijuana use, does not mean that the person was necessarily using during working hours or was impaired during working hours. Also, those using medical marijuana will fail a marijuana drug screen.
*Federal contractors must be mindful that being a marijuana friendly workplace could result in losing Federal contracts or funding.
*Inform employees that under worker's compensation insurance, for on the job injuries, "intoxication" is still a defense for insurance companies to refuse benefits, even with cases of medical marijuana.
*Monitor the changing state of the law in New Jersey and on a Federal level and be prepared to adapt your policies and procedures to comply with changes as they occur.
For assistance with any of the above, please contact DEMLP / Nicole Croddick.
Nicole Sorokolit Croddick is Counsel at Davison, Eastman, Muñoz, Lederman & Paone, P.A., where she focuses her practice on employment and labor matters. She consults companies on human resources issues and has conducted internal investigations on ethical and legal violations. She also conducts anit-harassment and other compliance trainings. Contact Nicole Croddick.