On
January 18, 2010, New Jersey Governor Corzine signed a
bill that legalizes marijuana use for medical purposes. The
New Jersey Compassionate Use Medical Marijuana Act (“Act”),
Assembly Bill No. 804, specifically states that “nothing
in this Act shall be construed to require . . . an employer
to accommodate the medical use of marijuana in any work place.” Section
16. Notwithstanding that broad statement, there are a number
of areas in which the Act could cause serious problems and
concerns for both New Jersey and Pennsylvania employers who
employ New Jersey residents. While no regulations
have yet been issued under the Act, here are some initial
thoughts on those areas of concern and suggestions on how
employers should handle potential problems.
1. Who
is eligible for protection under the Act?
A “qualifying patient” is one who has a “debilitating
medical condition” such as seizure disorder, epilepsy,
intractable skeletal muscular spasticity, wasting syndrome,
AIDS, multiple sclerosis, terminal cancer, muscular dystrophy,
inflammatory bowel disease or Crohn’s disease. Some
of the conditions must be resistant to conventional medical
therapy. Also covered is a terminal illness if the physician
has determined a prognosis of less than twelve (12) months
of life. The Department of Health and Senior Services also
has the ability to approve other medical conditions or
its treatment in the future.
The
protected “medical use of marijuana” includes
the acquisition, possession, transport or use of marijuana
or paraphernalia by a registered “qualifying patient.” The “qualifying
patient” has to be a resident of the State of New Jersey
and be given a written certification (“Registry Identification
Card”) by a physician that identifies the “qualifying
patient.”
For
the purposes of this Alert, I am going to assume
that the employee raising a question is a “qualifying
patient”.
2.
Can a “qualifying patient” possess and
carry marijuana at a work site?
The bill, in Section 12, provides an exemption from criminal
liability for individuals engaged in conduct authorized by
the Act. However, there is no such exemption for actions
that a private employer may take based upon violations of
its promulgated policies. In light of Section 16, quoted
above, there is no restriction on an employer enforcing its
own policies which prohibit possession, use or transport
of illegal drugs at the work place.
Because of the potential for theft or use of the marijuana
by unauthorized co-workers, I believe that it is a legitimate
policy for an employer to continue to prohibit possession
or carrying marijuana at a work place. The potential conflict
comes into play if an employee has a medical need to smoke
medical marijuana throughout the day, including the time
during which he or she is present at the work site. I would
recommend a policy under which the employee is permitted
to return to his or her home during the work day in the event
that additional treatment is required during the work day.
My reading of the Act is that there is no violation of the
Act if possession of marijuana continues to be prohibited
at the work site.
Another obvious problem is that Section 8 says that nothing
in the Act shall be construed to permit a person to smoke
marijuana in a private vehicle unless the vehicle is not
in operation. If the Act does not allow someone to drive
a motor vehicle while smoking marijuana, the question then
becomes how the does the employee arrange for transportation
to and from his home/work to obtain a treatment. Buses, taxi
cabs or rides from co-workers or family may be required as
a result of safety concerns.
3.
Must an employer allow a “qualified patient” to
smoke medical marijuana at the workplace?
The
New Jersey Smoke – Free Air Act, NJSA 26:D-55-et
seq., was passed in January 2006 and requires smoke-free
environments in all indoor workplaces and places open
to the public. In my opinion, smoking marijuana would be
prohibited under that law. I do not believe that the right
to use medical marijuana would supersede the New Jersey
Smoke-Free Air Act. Smoking marijuana at work would also
result in second hand smoke being inhaled by co-workers
which could be a violation of the Americans With Disabilities
Act. The Occupational Safety and Health Act also could
be construed to protect workers from second-hand smoke.
4.
Can “qualifying patients” smoke
marijuana at home?
Yes.
5.
What about a Drug and Alcohol
Testing Policy?
A “qualifying patient” who uses medical marijuana
at home could test positive for marijuana up to thirty (30)
days after each use. This means an employer with a drug testing
policy could have a “qualifying patient” test
positive for marijuana. My interpretation of the law is that
even though an employer does not have to accommodate an employee,
under the Act, an employer could not preclude the employee
or applicant from using medically approved marijuana at home.
Accordingly, my recommendation would be to excuse or exempt
any “qualifying patient” from a drug and alcohol
policy violation for a positive marijuana test if the employee
can present a “Registry Identification Card” which
would be the same as a doctor’s prescription for
marijuana. In this regard, the employee will be treated
like any other employee who tests positive for a restricted
drug, but has a valid prescription permitting use.
6.
What if an employee shows up for work “stoned”?
Since
Section 16 states clearly that an employer need not “accommodate
the medical use of marijuana in any work place”, an
employer would be within its rights to discipline and/or
send home any worker who shows up for work under the influence
of marijuana. However, I believe that employers should use
discretion based upon the job title and job duties. For example,
in a customer service position, an employer might legitimately
preclude a “qualifying patient” from working
while “stoned”. The employer would have justifiable
reasons to not have a “stoned employee dealing with
the public. On the other hand, in a factory, warehouse or
office situation where the employee merely has to transcribe
text, enter data or do other manual tasks, the fact that
the employee is “stoned” may have no effect
on performance. I expect that we will see case law on this
issue.
7.
Can an employer restrict the employee’s
use of dangerous equipment?
Yes. The Act states in Section 8 that nothing permits a
person to operate navigate or be in actual or physical control
of any vehicle, aircraft, railroad train, stationary equipment
or vessel while under the influence of marijuana. The Act
also prohibits smoking marijuana while operating a school
bus or other form of public transportation or in a private
vehicle unless the vehicle is not in operation. This language
indicates that where there are safety or security concerns,
the employee shall not be permitted to operate dangerous
equipment or machinery while smoking or while under the influence
of marijuana. Like alcohol inebriation, it is fairly easy
for a lay person to determine if an employee or applicant
is under the influence of marijuana. There are tell-tell
signs and smells which make it obvious.
It would be legitimate for an employer who has a staff
of social workers who drive motor vehicles to visit the elderly
to prohibit both the active smoking while driving and the
operation of a motor vehicle under the influence. Likewise,
for employees who visit the elderly or sickly in their homes
or other locations, it would be a legitimate, bona fide business
justification to not allow those employees to either smoke
marijuana or be under the influence while working.
8. Is Intermittent leave under the Family and Medical Leave
Act available?
The FMLA could come into play if employees required time
off to smoke marijuana in order to relieve symptoms. This
would be especially true under those circumstances where
the employer did not wish to have employees on premises while
under the influence.
9.
Can an employer discipline or discharge employees for
use of marijuana if they are a “qualifying patient”?
While
an employer can certainly enforce its disciplinary policies
and rules, special attention and accommodations will
have to be provided for “qualifying patients”.
Article
graciously shared by Larry Besnoff, Esquire, Obermayer
Rebmann Maxwell & Hippel LLP
For
more information please contact Fern
Powers, PHR 215-563-5520, and/or I can connect
you with Mr. Besnoff
