For about a decade, New Jersey businesses could deal straightforwardly with marijuana use by their employees. The federal Drug Free Workplace Act encouraged them to maintain a zero tolerance drug-testing policy. Marijuana was, and remains, a Schedule 1 drug under the federal Controlled Substances Act. But even though the classification means, among other things, that there is no federally approved medical use for marijuana, many states — including New Jersey — have approved such use.
Until a couple of years ago, courts backed businesses that followed federal law. But then decisions in New Jersey and elsewhere started to favor employees taking the drug under state medical marijuana laws. And a federal district court ruling said federal laws don’t pre-empt state laws on the matter.
Some states, such as Pennsylvania, included anti-discrimination language in their laws. Not New Jersey. As a result, a Superior Court judge ruled its Compassionate Use Act doesn’t require an employer to accommodate medical marijuana. But an appellate court reversed that decision, ruling that a requirement for such accommodation might be found elsewhere in New Jersey law.
The New Jersey Supreme Court this month agreed to consider the case, in which a funeral company terminated a worker for violating a policy requiring employees to disclose if they are using a medication that might affect their ability to safely do their jobs. The worker’s marijuana use turned up in a hospital visit after the worker was involved in a minor car crash on the job.
The court’s taking of the case almost certainly means it intends to provide the guidance on employer accommodation of medical marijuana that New Jersey legislators failed to include in their statute.
There probably will be some circumstances where prohibiting employees from using marijuana will be upheld, such as by commercial drivers — which the U.S. Department of Transportation prohibits. A federal judge ruled that a business in Camden wasn’t required to accommodate a forklift operator who had a doctor’s note stating he could operate machinery while using marijuana, according to the New Jersey Law Journal.
But either through the N.J. Supreme Court or subsequent changes in the law, businesses in the state can expect to be required to start accommodating most users under the medical marijuana law. That will likely include working with employees to come up with an accommodation, demonstrating when one isn’t given that an accommodation would be unreasonable, and treating medical marijuana users the same as employees taking prescription medicines that may cause impairment — even though marijuana hasn’t, unlike them, been approved for any medical use by the Food and Drug Administration.
Whatever marijuana’s merits, its use by employees will place another burden on New Jersey’s already over-regulated, over-taxed businesses. Considering employees’ use of the drug and accommodating it where reasonable might seem as light as a straw compared to those, but every new state-imposed cost on business either falls on consumers or impairs the state’s economy a little more — or both.