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By Matthew M. Collins

New Jersey employers it’s time to sit up and take notice of how medical marijuana may affect your human resource policies in the wake of a recent disability discrimination lawsuit against Amazon. The case has relevant employment law lessons for employers of all sizes ranging from companies with one employee to large corporate entities.

The suit was filed in October 2019 in Middlesex County by a former Amazon employee working at its Edison warehouse who was terminated for testing positive for marijuana in July 2018. (The case was moved to the U.S. District Court for the District of New Jersey on November 8.) The employee was lawfully registered with the state’s medical marijuana program. Following the positive test result, the employee advised Amazon of his status in the program. Like many other New Jersey residents, he was using the substance to treat a medical disability — in his case, an anxiety and panic disorder. Based on this disability, the employee submitted paperwork to Amazon requesting a reasonable accommodation for his use of medical marijuana.

However, at the time of the employee’s request for an accommodation 16 months ago, an employer’s legal obligation in this situation was not crystal clear, and remains so today. In July 2018, New Jersey’s disability discrimination laws did not seem to obligate an employer to provide accommodations for an employee’s use of medical marijuana. Given that interpretation, Amazon terminated the employee. This occurred despite the employee providing the requested documentation to Amazon.

Less than a year later — in March 2019 — the New Jersey Appellate Division ruled that an employer may have an obligation to reasonably accommodate an employee using medical marijuana. Again, the law on this issue is not completely clear but puts Amazon in an interesting legal predicament: its 2018 termination decision will now be judged in accordance with a legal precedent set in 2019. Further muddying the legal waters -- an Appellate Division’s March 2019 decision has been appealed to the New Jersey Supreme Court, which has not yet ruled on the appeal.

One thing is indeed clear, and a matter that all New Jersey employees are wise to heed regardless of the court’s decision: Employers must comply with the requirements of the Jake Honig Compassionate Use Medical Cannabis Act. The act, signed into law in July 2019, was crafted to dramatically reform New Jersey’s Medicinal Marijuana Program and to expand patient access to medical marijuana. It also prohibits employers from taking adverse employment actions against employees solely based on their status as medical marijuana patients. These employment protections for medical marijuana users are separate and apart from any protections afforded by the disability discrimination laws raised in the Amazon lawsuit.

As more people turn to medical marijuana to treat a wide variety of physical and emotional conditions, it is important to understand that they are protected against adverse actions by their employer. Additionally, employers must follow very specific procedures if an applicant or employee tests positive for marijuana. The Honig Act provides meaningful protections for employees who are lawfully taking medical marijuana. Those protections are currently in effect and likely will require employers in New Jersey to modify their existing policies and practices regarding medical marijuana usage.

Given that the legal landscape surrounding the issue of medical marijuana use by employees is shifting quickly, New Jersey employers should stay abreast of these changes, be aware of the current status of the law, and seek proper legal advice regarding matters related to employees or applicants who test positive for marijuana.

Matthew M. Collins is an attorney with Brach Eichler LLC in Roseland and chairman of their Labor and Employment Practice.

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