The New Jersey Medical Marijuana Act and Implications for the Workplace

On January 18, 2010, New Jersey Governor Jon Corzine signed into law the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1, et seq., which allows individuals with enumerated “debilitating medical conditions” to receive a certification, obtained through a registered physician, to use medical marijuana from a licensed dispensary in the state. The program’s patient registry opened on August 9, 2012, and since that time, over 50,000 New Jersey residents have registered for and been issued Medical Marijuana Program ID cards. According to the New Jersey Department of Health’s Division of Medicinal Marijuana, that number is expected to grow as high as 197,000 by 2022. With the number of New Jersey registered medical marijuana users on the rise, employers are being presented with complex questions, ranging from their obligation to reimburse employees for their use of medical marijuana as treatment for work-related injuries to compliance with laws prohibiting disability discrimination in the workplace. The recent decisions in Hager v. M&K Construction, 225 A.3d 137 (N.J. Super. App. Div. 2020) and Wild v. Carriage Funeral Holdings, 205 A.3d 1144 (N.J. Super. App. Div. 2019), as well as the 2019 amendments to CUMMA, provide employers with much needed guidance for traversing this rapidly changing landscape, involving the interplay of state and federal marijuana laws and laws against discrimination in the workplace.

In Hager, the court grappled with a potential conflict between CUMMA and the Controlled Substances Act (CSA), 21 U.S.C. § 841, which makes it a crime to manufacture, possess or distribute marijuana. In 2001, Vincent Hager was engaged in his duties as a laborer for his employer, M&K Construction, when a truck delivering concrete dumped its load on him, resulting in serious injury to his low back and legs. Hager sought treatment with a variety of physicians, underwent multiple spinal surgeries and ultimately developed chronic pain syndrome, which was treated with opioid medications. His primary care physician subsequently recommended that he discontinue the use of opioids due to their decreasing effectiveness and increasing adverse side effects. As an alternative, Hager was prescribed medical marijuana to manage his chronic pain under CUMMA. In July of 2018, a judge of compensation found Hager’s use of medical marijuana to be “reasonable and necessary” under the New Jersey workers’ compensation statute, N.J.S.A. 34:15-1, et seq. The judge’s order, in relevant part, required M&K to reimburse Hager for his continued use of medical marijuana for chronic pain.

M&K appealed this ruling on the grounds that, even if Hager’s use of medical marijuana was permitted by CUMMA, were the court to order that M&K authorize and subsidize Hager’s acquisition of medical marijuana, it would require M&K to engage in conduct made criminal by the CSA. Further, M&K claimed that federal prosecution could be directed against them for aiding and abetting in the commission of a federal crime, namely, Hager’s procurement of a controlled substance. As such, M&K reasoned that if it were to comply with the judge’s ruling to reimburse Hager for his use of medical marijuana, it would be engaging in conduct that met all of the elements of a federal crime. In light of this conflict, M&K argued that the CSA preempted CUMMA and that the judge’s ruling must be reversed based on established preemption principles.

In affirming the judge of compensation’s order, the Appellate Division found that M&K’s reimbursement of a registered CUMMA patient’s use of medical marijuana did not require it to “possess, manufacture or distribute” marijuana—the actions proscribed by the CSA. Further, the Appellate Division concluded that, as it did not have the requisite intent necessary for an aiding and abetting charge, M&K could not be found to have aided and abetted Hager if it simply reimbursed him for medical marijuana as ordered by the judge of compensation. The Appellate Division also found that M&K’s argument that compliance with the judge’s order exposed it to the threat of federal prosecution was specious. Rather, the court noted that, despite the enactment of medical marijuana legislation by the majority of states, M&K was unable to apprise the court of any federal prosecution against an employer or insurance carrier for its reimbursement of authorized medical marijuana treatment.

Similarly, in Wild, the Appellate Division was presented with questions arising from the apparent conflict between an employer’s obligations under CUMMA and obligations imposed by other employment laws, including the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1, et seq. There, the Appellate Division tackled the interplay between CUMMA and NJLAD in determining if an employer is required to accommodate its employee’s use of medical marijuana as part of his cancer treatment.

Justin Wild was hired as a licensed funeral director with Carriage Funeral Homes in 2013. In 2015, Wild was diagnosed with cancer. As part of his treatment, his physician prescribed marijuana as permitted under CUMMA. In 2016, after a minor work-related motor vehicle accident—the hearse he was driving was rear-ended—Wild was taken to an emergency room, where he informed the hospital physician that he was using medical marijuana pursuant to a prescription. According to the police report, Wild was not at fault for the accident, nor was he under the influence of marijuana at the time. Carriage learned of Wild’s drug use from the emergency room records and, before allowing him to return to work, ordered him to take a drug test. When Wild tested positive for marijuana, he was terminated.

Wild filed suit against Carriage, claiming it failed to reasonably accommodate his disability, namely, his cancer, and that he was unlawfully discharged in violation of NJLAD because he used medical marijuana as permitted by CUMMA in order to treat his cancer. In dismissing his suit, the trial court relied on a provision in the law stating that CUMMA did not require employers to reasonably accommodate licensed use of medical marijuana in the workplace. The Appellate Division reversed, holding that the fact that CUMMA did not require an employer to accommodate an employee’s use of medical marijuana did not eliminate an employer’s obligation under NJLAD to reasonably accommodate an employee’s disability, including an employee’s use of medical marijuana during off-duty hours for treatment of cancer.

On July 2, 2019, and following closely on the heals of the Appellate Division’s decision in Wild, New Jersey Governor Phil Murphy signed into law the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA), which amends CUMMA. Specifically, CUMCA deleted the provision in CUMMA stating that employers were under no obligation to accommodate an employee’s use of medical marijuana in the workplace and replaced it with language explicitly prohibiting employers from taking any adverse employment action against applicants or employees solely based on their status as registered users of medical marijuana. Further, although employers are not required to waive mandatory drug testing for an employee who is a registered medical marijuana user, CUMCA makes mandatory an employer’s obligation to provide individuals testing positive for marijuana with written notice of such results, as well as their right to provide a “legitimate medical explanation,” such as possession of a Medical Marijuana Program ID card, within three business days of the written notice. That notwithstanding, CUMCA does not require an employer to accommodate an employee’s possession or use of marijuana on its premises, and it allows employers to discipline an employee found to be under the influence of medical marijuana in the workplace.

Shortly after CUMCA was signed into law, the New Jersey Supreme Court granted certification for review of the Appellate Division’s decision in Wild. On March 10, 2020, the Supreme Court affirmed the Appellate Division’s holding in Wild, largely reiterating the lower court’s reasoning that Wild’s use of medical marijuana for treatment of his cancer was protected under the NJLAD. See Wild v. Carriage Funeral Holdings, 2020 WL 1144882 (N.J. Mar. 10, 2020).

At present, New Jersey’s trend toward providing protection for employees registered to use medical marijuana continues. On February 13, 2020, a bill was introduced in the legislature that, if passed, would require employers to reimburse employees for their use of medical marijuana as treatment for work-related injuries. This legislation would effectively memorialize the Appellate Division’s decision in Hager, and, although it would require an employee seeking medical marijuana reimbursement to have attempted at least one other medication or treatment that was unsuccessful in treating his condition, this additional requirement is certainly in line with the Appellate Division’s reasoning. Of course, introduction of this legislative bill, as well as the holdings in Hager and Wild and the recent amendments to CUMMA, do not mean that employers will be required to reimburse medically prescribed marijuana for work-related injuries or illnesses in every instance, or that employers must accommodate the use of medical marijuana in the workplace under every circumstance. However, it does demonstrate a clear pattern that is highly suggestive of New Jersey’s intent to continue to grant protections to employees from adverse action by their employers arising from their use of medical marijuana.

*Dario is a shareholder in our Roseland, New Jersey office. He can be reached at 973.618.4122 or djbadalamenti@mdwcg.com.

_{Defense Digest, Vol. 26, No. 2, June 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2020 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}