Proposed Amendment to Medical Marijuana Act Could Change Everything

Will Legislature pass proposed Amendment to the Compassionate Use Medical Marijuana Act? 

The use, possession, sale, cultivation, and transportation of marijuana, whether for recreational or medical use, is illegal under federal law. However, over the last several years, both Congress and President Obama have signaled that well-regulated state medical marijuana programs should not be targeted for federal enforcement especially with the introduction of the Compassionate Use Medical Marijuana Act. As a result, the District of Columbia, Guam, and more than 20 states have legalized medical marijuana use.

Medical marijuana in NJ

Medical marijuana use was legalized in the Garden State in 2010 with the enactment of the New Jersey Compassionate Use Medical Marijuana Act (the “Act”). The New Jersey Department of Health implemented the Act by creating the New Jersey Medical Marijuana Program (“MMP”). The MMP authorizes approved physicians to disburse up to two ounces of medical marijuana to a registered patient during any 30-day period to treat numerous “debilitating medical conditions,” particularly where conventional treatments are ineffective or exacerbate a patient’s suffering.

These conditions include seizure disorders, including epilepsy, skeletal muscular spasticity, glaucoma, HIV, AIDS, cancer, muscular dystrophy, and inflammatory bowel disease. Patients with terminal illness may also enter the MMP where a physician provides a prognosis of fewer than 12 months of life.

Private employers in New Jersey have had a difficult time reconciling their workplace processes and policies with the intricacies of the MMP. These difficulties have often resulted in terminations of employees based on their status as MMP patients, or because they tested positive for medical marijuana. Consequently, some MMP patients have filed wrongful termination lawsuits against their former employers.      

Proposed amendment to “the Act”

A bill currently passed before the Legislature is designed to amend the Act to address this issue. The bill serves to clarify the rights and obligations of employers, employees, and job applicants regarding hiring and termination decisions in situations involving medical marijuana use.  

The bill, S2161/A2482 (the “Amendment”), proposes the following:

• Employers would be prohibited from discriminating against a job applicant or terminating an employee based on the individual’s status as an MMP patient or based on a positive marijuana test result.
• In situations where an applicant or employee tests positive for marijuana, the Amendment would require requires employers to provide written notice to the individual stating that she may, within three days of the positive test result, request and pay for a confirmatory retest of the original sample or present a legitimate medical explanation for the test result.  

• If the lawful use of medical marijuana caused a qualified job applicant’s positive test result, then the Amendment prohibits the employer from using the result as a basis for refusing to hire the applicant.

• If an employee’s positive test result was caused by the lawful use of medical marijuana, then the Amendment prohibits the employer from terminating the employee unless the employer establishes by a preponderance of the evidence that the employee’s use of medical marijuana has resulted in “specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.”

“The Amendment provides employers with significant legal protections.”

Benefits of the Amendment

The Amendment provides employers with significant legal protections. Notably, the Amendment would not restrict an employer’s ability to prohibit the possession or use of “intoxicating substances” during work hours or to take related adverse employment action. Also, in recognition of the illegality of marijuana use under federal law, the Amendment specifically states that it would not require employers to commit any act that would cause the employer to be in violation of federal law, or that would result in the loss of a federal contract or federal funding.

The language of the Amendment gives rise to several questions, especially with respect to the amount of discretion granted to employers regarding current employees. For example, what “specific articulable symptoms” might employers successfully cite to terminate an employee based on medical marijuana use? What metrics would employers be required to use to demonstrate a decrease or lessening of an employee’s job performance? To what degree would an employee’s performance have to decrease to support termination? What recourse would be available to terminated employees?

When will the amendment go through Legislature?

It is highly likely that the Amendment will then be revised as it proceeds through the Legislature. New Jersey employers and MMP patients should act now to familiarize themselves with the Amendment and should closely monitor related developments this fall to stay apprised of their respective rights and obligations.