Boss can’t (necessarily) fire you for medical marijuana off-hours — court

New Jersey law can prohibit employers from firing employees who use medical marijuana off-hours, a court ruled late last month — a decision one law firm says could have "sweeping effects on New Jersey employers with drug-free workplace and drug-testing policies."

"If you enforce zero-tolerance policies, be prepared for future challenges to such policies," Epstein, Becker and Green wrote in an analysis of the decision last week.

The case, decided late last month, involved a funeral director at Carriage Funeral Holdings who had been prescribed medical marijuana to manage symptoms from his cancer — and who used marijuana during his off hours to do so. Wild hadn't told his employer about his medical marijuana use.

The funeral home became aware of his marijuana use after Wild was in a motorcycle accident, and it required him to take a drug test.

The court recounted that Wild says he told his employers he didn't ever take marijuana at work "because I don't want to jeopardize my license for what I have worked so hard for." Wild also said he only took the marijuana as advised by his doctor.

"Carriage Funeral’s corporate office terminated Wild’s employment due to his failure to inform his supervisor that he had been taking medication that might adversely affect his ability to perform his duties," Epstein, Becker and Green wrote in its analysis.

He initially sued, alleging disability discrimination and failure to accommodate his medical needs — but a trial court found because marijuana remains illegal under federal law, the funeral home could fire him for it. It also found New Jersey's Compassionate Use Medical Marijuana Act didn't have employment protections for medical marijuana users."

But an appeals court found New Jersey's Law Against Discrimination could require the funeral home to accommodate a medical need — though it would have to be analyzed on a case-by-case basis.

"He had a disability (cancer) and was legally treating that disability, in accordance with his physician's directions and in conformity with the Compassionate Use Act," the court found.

It noted specifically, though, the law doesn't require companies to allow medical marijuana use on the job.

“I always emphasize when it comes to issues of disability, you must act on a case by case basis, and this case highlights the need to do that," Maxine “Mickey” Neuhauser, an employment expert with Epstein, Becker and Green, told NJ.com for its own report on the decision.

In the law firm's analysis of the ruling, it advised employers determine whether they should "eliminate or relax certain hiring and employment policies to accommodate lawful medical marijuana users" — including making exceptions for medical marijuana use that wouldn't cause a problem on the job.

It said employers should be ready for employees to request "reasonable accommodation" of their use — "and avoid a 'knee jerk' negative reaction to an employee’s use of medical marijuana."

And if an employee tests positive for marijuana, and employer should follow protocols to see if the employee has a qualified disability and whether the employee's use of medical marijuana would interfere with the job.

Legislators took steps last month to ensure that employers could still penalize employees for off-hours recreational marijuana use under a bill to make recreational pot legally available. Negotiations continue on such a bill — which would fulfill a key campaign promise by Gov. Phil Murphy.

“And if the employer has a zero (tolerance) policy, they’re either sending you to rehab or they’re terminating you, depending on the employer’s policy,” State Senate President Sweeney said at the time.

But pending legislation would also more explicitly protect employees from getting fired for for failing a drug test without further cause. It says if an employee or applicant tests positive for cannabis"the employer shall offer the  employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result."

“The advice that I've been giving employers is ‘just stay calm,’” Laura Link, a cannabis attorney at Archer Law, told businesspeople at a New Jersey Business & Industry Association’s panel event earlier this year, NJ Spotlight reported at the time. “There’s no reason for us to believe that because the medical program is expanding and because we’re considering legalization of adult use on the state level, that all of a sudden people who came to work sober every day are going to start coming to work impaired.”

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