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Kates Nussman Rapone Ellis & Farhi, LLP

Seeing Through the Smoke Medical Marijuana Use in the Workplace

Our readers may be surprised to know that New Jersey has had a medical marijuana law since January 2010. That is likely due to its slow implementation. It took until August 2012 for the Medical Marijuana Program (MMP), the registry for qualified patients, to open. And it wasn't until December 2012 that the first and only state-approved dispensary - in Montclair - opened.

Each of the 17 states that have a medical marijuana law handle things differently. New Jersey, unlike other states, requires that only a doctor who is specifically registered is allowed to dispense medical marijuana. The New Jersey Compassionate Use Medical Marijuana Act, the law's official name, also requires patients who qualify for medical marijuana to go through an approved Alternative Treatment Center (ATC) to get it, where other states allow approved patients to grow their own. These patients must have a diagnosis of a "debilitating medical condition. "

It's not clear what burdens employers face when a worker is a medical marijuana user. In other states where this has been considered by court, businesses have been given broad freedom to decide drug policy in their workplace. For example, in many of these states, employers can still enforce drug policies and testing, allowing termination of employees who test positive for marijuana - in spite of its medical use.

But New Jersey courts have not yet dealt with the question. What we do know is that the law has specific language that does not require an employer to accommodate medical marijuana users - nor does it add any workplace rights for such employees. Even with that language, the law is unclear. An employee's lawyer could argue that the law only prohibits use of marijuana, for both medical and non-medical purposes, on company premises, but its use elsewhere is fine.

Business owners and managers should keep in mind that New Jersey has aggressive legal protections for employees under the Law Against Discrimination (LAD) that may cause courts to restrict employers' powers. For example, under the LAD, alcoholism is protected because it is a controlled substance and has physical and psychological manifestations for the individual. While current heroin addiction is not protected, past heroin addiction is - if the user is in rehab.

But which situation is medical marijuana use closer to? On the one hand, medical marijuana is a legal substance that produces physical and psychological handicaps (like alcohol) and, it is being used as a treatment (like rehabilitation). So it would be a protected handicap.

On the other hand, marijuana use is current usage (like the heroin example) and it is not a disease (like alcoholism). So it would not be protected. It's not clear how the courts will decide, but what we know is that the law will protect the medical condition underlying the medical marijuana use (cancer, etc).

What should an employer do? Write your own drug policies. Some businesses could treat medical marijuana use the same way it treats any other medical disability. Others might adopt a zero-tolerance policy that would not accommodate medical marijuana users, period. It's also important to note that any company with federal contracts is required to follow the Drug Free Workplace Act - and marijuana is still a federally illegal drug. Unfortunately, there is no clear answer now about what is and is not protected, both for employers and their pot smoking (for medical purposes only, of course) employers. With assistance from Angela Yu, Rutgers School of Law & Rutgers Business School.

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