A play off the Game of Thrones tagline, but true nonetheless.  It should be more specific to say marijuana related litigation is coming to New Jersey. 

By now, you have likely heard or read about actions in Trenton regarding legalizing recreational marijuana.  Wherever your opinion falls regarding the full legalization of marijuana, New Jersey already permits medical marijuana and we are just starting to see its effects on the New Jersey job market. 

Medical marijuana was originally passed in the waning days of Governor Jon Corzine’s administration, just prior to the swearing-in of Governor Chris Christie.  While Governor Corzine signed the legislation, his administration did not have time to write the regulations that would govern New Jersey’s medical marijuana program.  That was ultimately left to Governor Christie and his administration.  However, Governor Christie was an opponent of medical marijuana and put rules in place that severely restricted patient access. 

Governor Phil Murphy was a vocal advocate on the campaign trail in 2017 for not only expanding medical marijuana but also legalizing recreational marijuana.  While his push for legalization has yet to come to pass, he has fulfilled his promise to expand New Jersey’s medical marijuana program. 

As of April 2019, New Jersey currently has 44,000 individuals who are approved to buy medical marijuana from one of six dispensaries (six additional medical marijuana dispensaries have already been approved but are not yet operational).  That number is almost triple the 17,000 individuals who were approved at the end of Governor Christie’s term of office.  That rapid expansion is now coming to a head in the Courts over various issues regarding employment related issues for medical marijuana patients. 

On March 27, 2019, a New Jersey Appellate Court ruled that an employee cannot be fired merely for having marijuana in his system provided he had a valid prescription.  (Wild v. Feeney Funeral Home).  In the Wild case, the employee was involved in a car accident but was not at fault for the accident.  His employer though insisted he have blood drawn to check for the presence of any drugs.  Wild relayed that he was prescribed medical marijuana but was not under the influence at the time of the car accident.  Wild’s employer required him to pass a drug test before coming back to work.   As you can guess, Wild failed his drug test and his employment was terminated.    

Wild later filed a lawsuit against his employer under New Jersey’s Law Against Discrimination (LAD) saying he was discriminated against for using medical marijuana.  The current medical marijuana law has a provision which states nothing “requires an employer to accommodate a medical marijuana user”, N.J.S.A. 24:6I-14.  Based on that line, his lawsuit was dismissed by the lower court. 

On appeal, the Appellate Court reversed, holding that other New Jersey laws do require an employer to make reasonable accommodations, even if the medical marijuana law does not.  The Court stated:

“We reject the essential holding that brings this matter here and conclude that the Compassionate Use Act’s refusal to require an employment accommodation for a user does not mean that the Compassionate Use Act has immunized employers from obligations already imposed elsewhere.  It would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer’s termination of a cancer patient’s employment by discrimination without compassion.” 

While this decision will likely be appealed to the New Jersey Supreme Court, it is important for all employers to understand the ramifications of this current ruling on their employment decisions to avoid any Employment Practices (EPL) claims. 

Should you run into issues involving employees who are authorized to use medical marijuana, please consult your HR professionals, attorneys, and your insurance agent at Borden Perlman on what steps you can take to best protect your organization.