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Can A Business "Just Say No" to Drugs on the Job?

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Leslie has owned a small New Jersey hardware store for 20 years. She's always had a zero-tolerance policy for problems on the job - no harassment, no bullying, and no controlled substances that affect anyone's work. When she heard that New Jersey passed a medical marijuana law, she didn't pay much attention, since it didn't affect anyone she knew. One day, though, she found Paula, a hardworking longtime employee with a family, leaving the bathroom with pinkish eyes and the sharp aroma of pot. When Leslie confronted her, Paula said "I'm sorry, but I've got to take this. My doctor prescribed it." She even showed Leslie her doctor's note. At that moment, Leslie was torn: on the one hand, Paula was a good employee, and she was sympathetic that she'd been working in spite of a painful disease. But on the other hand, smoking pot on the job went against the very core of her business policies. If she punished or fired Paula, would it be legal since New Jersey legalized the drug?

The law's relationship with marijuana, on both a federal and state level, has been a difficult one. The federal Controlled Substance Act (CSA), passed in 1970, regulates the manufacture, importation, possession, use, and distribution of certain drugs and chemicals. Historically, marijuana had been categorized under the most heavily restricted class, Schedule 1, which was reserved for drugs that had "no currently accepted medical use." While federal law still leaves marijuana under Schedule 1, state law has changed. New Jersey, in 2010, passed the Compassionate Use Medicinal Marijuana Act and the ensuing Medicinal Cannabis Program.

A person must meet certain requirements to be eligible. First, there must be a "bona fide" (real) relationship with a doctor registered in the program (in which the patient receives ongoing assessments, care, and treatment). Second, the person must be a New Jersey resident. Third, the person must be diagnosed with a "debilitating medical condition," which includes diseases like multiple sclerosis and terminal cancer, and also where a person has a resistance to traditional treatments for conditions like seizures or glaucoma. Once a person satisfies all requirements, marijuana use for treatment purposes no longer results in criminal prosecution or punishment.

Despite decriminalizing medicinal marijuana use, New Jersey laws do not explicitly provide users with employment protection. But the Courts haven't yet defined whether employers can reprimand medicinal users by using drug tests and "zero tolerance" policies. Other states, though, have started to chart out this uncertain territory. Current case law favors employers in California, Colorado, Michigan, Montana, and Washington, where the laws say that decriminalization doesn't extend to private workplace rights.

But in this state, businesses should be prepared for a different result, since the Courts here are more sympathetic to employee rights. At minimum, that means that employers should make their drug policies clear and make distinctions between medicinal and illegal use.

If an employee discloses that he or she is a member of the Medicinal Cannabis Program, a supervisor or owner may not ask about sensitive, private information, like the underlying disease being treated. Employers must also take care not to have policies that tread on protections offered by workplace discrimination legislation, such as the Family Medical Leave Act or the Americans with Disabilities Act. This often requires a bright-line between unlawful job termination or other discipline due to the underlying disability and lawful job termination due to a failure to comply with drug policies.

In the end, Leslie can remain true to her zero-tolerance policy and terminate Paula's employment, but she must make it explicitly clear that she's doing so because of the on-the-job drug use and its impact on the essential functions of the job, not due to any effects of Paula's illness. She should also be aware that her situation is ripe for a lawsuit, given Paula's sympathetic circumstances. If Paula does decide to sue, New Jersey courts may use the case as an opportunity to finally come out of the haze and create a precedent on medicinal marijuana and employee rights. In a case like this, Leslie's best course may be offering Paula severance in return for her giving up any right to sue. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and will soon serve as Managing Research Editor of that publication.

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