Medical Marijuana in the Workplace

Feb 2010

(February, 2010, Livingston, NJ) What to do with an employee who tested positive for marijuana used to be a fairly straight forward decision.  That is not necessarily the case anymore.

New Jersey becomes the first state in the region and the 14th in the nation to legalize the use of marijuana for medical reasons.  The law permits patients diagnosed with severe illnesses to have access to marijuana distributed through state-monitored dispensaries.

Although use of marijuana remains illegal under the federal Controlled Substances Act regardless of whether it is medically prescribed, the U.S. Department of Justice announced in October 2009 that federal agents will target users and distributors of marijuana only when they violate both federal and state laws.  In addition, employers may have to consider whether they must allow employees to use medical marijuana as a reasonable accommodation under federal or state discrimination law. 

These developments have caused employers to re-examine their “zero tolerance” policies with regard to drug use by employees, says John Sarno, president of Employers Association of New Jersey.

“Although under most state laws, employers are free to discipline or terminate employees for positive drug test results, regardless of whether they are medical users of marijuana,” says Sarno.

A 2008 decision by the California Supreme Court found that an employer would be within its right not hire someone or terminate an employee whose drug test came up positive for marijuana because it is still considered an illegal drug.

On the other hand, Sarno does not believe that an employee can be fired simply for using medically-prescribed marijuana.

“Ordinarily, an employee can be fired for any reason or for no reason.  But I wouldn’t be surprised if a court would create an exception for off-duty prescribed use,” he says.

EANJ Webinar: Medical Marijuana in the Workplace