Worker Use of Medical Marijuana Poses Challenges for Employers

By: Joseph L. Linares and Selina M. Ellis

Marijuana laws are changing at a rapid pace across all 50 states. Currently, 40 states permit some form of medical access to marijuana. One of the many thorny issues they must negotiate is whether a prospective or current employee who engages in state-permitted medical marijuana use is protected from adverse workplace consequences.

Only nine states (Connecticut, Delaware, Rhode Island, Arizona, Illinois, Maine, Nevada, New York, and Minnesota) have statutes barring employers from firing or refusing to hire employees who use medical marijuana in compliance with the requirements of state law.[1] Although New Jersey has a medical marijuana program (with possible legalization of recreational use on the horizon), New Jersey’s Compassionate Use and Medical Marijuana Act, N.J.S.A. § 24:6I-1, et seq., does not contain such a provision. It is anticipated, however, that legalization of recreational use of marijuana in New Jersey through proposed Senate Bill 2703, the New Jersey Cannabis Regulatory and Expungement Modernization Act, may include provisions preventing employers from considering an employee’s marijuana use in hiring/firing decisions unless the employer “has a rational basis for doing so which is reasonably related to employment, including the responsibilities of the employee or prospective employee.” The proposed bill also prohibits consideration of past convictions for low level distribution and possession charges in employment, housing and educational decisions.

Consideration of the few legal decisions addressing this issue may shed light on how New Jersey courts may respond.  The scope of workplace statutory protections is illustrated by the following cases.

• In Noffsinger v. SSC Niantic Operating Co., 338 F. Supp. 3d 78 (D. Conn. 2018), the court granted summary judgment in favor of a plaintiff whose job offer was rescinded after she failed to pass a drug test.  They held that Connecticut’s Palliative Use of Marijuana Act[2] created a private right of action for a failure to hire a qualifying medical marijuana patient. The plaintiff’s offer to work for a nursing home was rescinded even though she had disclosed that she was permitted to receive medical marijuana under Connecticut’s medical marijuana statute, and that she took her medical marijuana pills at night, not before or during work hours. In addition to finding for the plaintiff, the court also held that the state’s anti-discrimination provision is not preempted by federal law.[3]

 

• Similarly, in Callaghan v. Darlington Fabrics Corp.[4], the plaintiff was a permitted medical marijuana user under Rhode Island’s [5] She was denied employment because “she was currently using marijuana, would not stop using marijuana while employed by the Company, and could not pass the required pre-employment drug test, and thus could not comply with the Corporation’s drug-free workplace policy.”[6] The plaintiff sought a declaration that the “failure to hire a prospective employee based on his or her status as a medical marijuana card holder and user is a violation of the” Hawkins Slater Act, among other causes of action.[7] The court granted the plaintiff summary judgment and in doing so, found an implied private right of action.[8]

 

By contrast, a recent ruling out of Michigan signals the potential outcome for employees when there are no affirmative statutory workplace protections for marijuana users.

• In Eplee v. City of Lansing,[9] the Michigan Court of Appeals ruled in favor of the defendant government employer, which rescinded an employment offer after the plaintiff tested positive for marijuana. The plaintiff, a qualified patient under the Michigan Medical Marihuana Act[10] (the “MMMA”), had alleged that rescinding her employment offer violated the MMMA. The court disagreed and granted the defendant’s motion for summary disposition holding that while the MMMA protects qualified patients from “arrest, prosecution, or penalty in any manner” or “denying any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act,”[11] the harm plaintiff “suffered was the loss of an employment opportunity in which she held absolutely no right or property interest.”[12]

 

While New Jersey Senator Cory Booker and others reintroduced the Marijuana Justice Act which would legalize marijuana on the federal level, the current disconnect between federal and state policy has created a gray area for employers that test prospective employees for drug use. Important considerations include whether the employee’s medical marijuana use is on-site, affects the employee’s ability to perform his/her job, or implicates safety concerns, as well as the medical condition for which the employee has been prescribed marijuana.

For more information on New Jersey’s medical marijuana program and its effect on employers, or the Firm’s Employment or Marijuana Regulatory Practices, please contact Peter Pizzi, Marc Haefner, M. Trevor Lyons, Selina Ellis or Joseph Linares at (973) 757-1100.

 

[1] Chance v. Kraft Heinz Foods Co., No. K18C-01-056, 2018 Del. Super. LEXIS 1773, *6 (Sup. Ct. Dec. 17, 2018).

[2] Conn. Gen. Stat. § 21a-408, et seq.

[3] 338 F. Supp. 3d at 84.

[4] C.A. No. PC-2014-5680, 2017 R.I. Super. LEXIS 88 (Sup. Ct. May 23, 2017)

[5] §§ 21-28.6-1, et seq., (the “Hawkins Slater Act”),

[6]  2017 R.I. Super. LEXIS 88 at *4.

[7] Id.

[8] See G.L. 1956 §§ 21-28.6-4(d).

[9] No. 342404, 2019 Mich. App. LEXIS 277 (Ct. App. Feb. 19, 2019),

[10] MCL 333.26421, et seq.

[11] MCL 333.26424(a),

[12]  2019 Mich. App. LEXIS 277 at *25.