Marijuana Rights in New Jersey: Work and School

The times, they are a' changin'! The legal and social landscape regarding marijuana, both medicinal and recreational, is rapidly evolving, especially in New Jersey. Clearly, the days of "Yes, but I didn't inhale," are over.

While recreational drug use - or the use of any substance which impairs judgement - still carries with it a need to be responsible and careful, the rights of persons who use marijuana or its components are undergoing social, cultural and legal change. Rather than lecture you, here are some of the most frequently asked questions regarding the use of marijuana.

Even if your question appears below, remember, this isn't legal advice; always call the law firm for a free consultation with a partner to discuss your matter in more detail. Whether it effects your rights in school, in the workplace or in your own home.

What does the Law Against Discrimination have to say about marijuana use?

The New Jersey Law Against Discrimination (The New Jersey "LAD") is a compressive and progressive civil rights statute encompassing all manner of discrimination and surpassing, in nearly every case, any applicable federal laws that apply in all 50 states (including New Jersey).

One of the provisions of the LAD requires "reasonable accommodation" for individuals with "disabilities." It's clear from our case law that one of the ways in which an employer must consider a "reasonable accommodation" for a "disability" is in allowing reasonable use of medication by the employee at or on the job.

Obviously, every situation is unique, because every job, every person and every employer is unique, just as every disability and need for medication is unique. If medication use, while medically necessary, would essentially prevent the employee from preforming the essential functions of a job, then it need not be accommodated, because it's not "reasonable" to expect the employer to do so.

On the other hand, if the use of medication - including marijuana or its components - does not substantially impair the employee from doing the job, then the use of medical marijuana is no different than the need to use any other medication or drug. As long as the use of medication, including marijuana or its components, is not an "undue burden" on the employer, then the employer may expose itself to liability under the New Jersey LAD for failing to discuss the issue in an "interactive process," or failing to grant the accommodation.

What is the NEW JERSEY COMPASSIONATE USE MEDICAL MARIJUANA ACT (CUMMA)?

The use of medical marijuana is now legal in New Jersey through this statute. That means that if a person has a valid prescription for marijuana or its components, such as CBD oil, then an employer can no longer discriminate against you simply by virtue of your use of these medications.

This is true in the same way that an employer would not be able to discriminate against you simply because you're taking any other type of pain relief or symptom-support medication.

What if my employer says I'm not allowed to use "illegal" substances?

Many employers have this policy and many even require random testing to enforce these policies. The law is still somewhat uncertain as to this point.

For example, what if you illegally obtain marijuana for otherwise valid medical purposes? The position we'd take at Costello & Mains is that as long as you are using medication for a medically necessary purpose, and as long as there is a reasonable explanation as to why you were using illegally obtained medication, you have an argument as to why you should not be discriminated against.

On the other hand, there is no law that prohibits and employer from terminating an employee that they feel is engaging in a criminal conduct. While the law remains unsettled as to "recreational" marijuana use, it's best not to illegally use or illegally obtain marijuana, even for an otherwise "valid" medical purpose.

I heard that the CUMMA doesn't require and employer to accommodate the use of medical marijuana in a workplace? Does that mean I can't use it even if it is medically necessary?

Our position is that the CUMMA (in s.6) may say that "nothing in this act shall be construed to require...an employer to accommodate the medical use of marijuana in any workplace," the New Jersey LAD still requires an employer "reasonably accommodate" a disability, and we argue in our work that such "reasonable accommodation" can, and frequently does, involve the use of medically necessary medication, including medication for symptom relief.

Our position is that this section of the CUMMA is superseded by the overall requirements of the New Jersey LAD, but state and federal courts might differ on this issue; we have not established a body of law yet to address this inconsistency.

Are there any other laws protecting me from my employer for authorized medical marijuana use?

Currently pending before the New Jersey State Legislature is A-1838, introduced by Assemblywoman Pamela R. Lampitt and Assemblyman Reed Gusciora. This bill would amend the CUMMA to protect employees from certain "adverse" employment actions predicated upon the idea that the employer is unhappy with the employee using medical marijuana or possessing a medical marijuana card.

For example, specifically contemplated within the Bill would be a prohibition against punishment simply because an employee possesses such a card or has tested "positive" for marijuana, as long as it comes from medically sanctioned and proper medical use.

The Bill of course allows an employer, however, to "consider" an employee's ability to perform the necessary functions of the job if they are somewhat impaired as a result of the medical marijuana use.

The Bill also states that in the face of any positive drug test, an employer would have to allow the employee the opportunity, before taking any adverse action against her, to "legitimize" the use of the medication and the positive test result.

This Bill, while well intended, provides only a few protections additional to those already provided for in the CUMMA and the LAD.

What about the use of medical marijuana in schools?

Schools are, to their students, what we call "in loco parentis." This means that they are, in essence, the "parents" while the children are in their care. They must look after the welfare of the children, protect them from harm, and discharge their legal obligations to the children. This raises very special concerns when it comes to using what has traditionally been viewed as a "dangerous, illegal drug."

The CUMMA presently contains a built-in provision that prohibits the use of medical marijuana "in a school bus" or in any other form of public transportation or "on any school grounds." As well, the CUMMA contains a similar built-in provision when operating or navigating vehicles, aircraft, trains or certain heavy equipment.

Taken together, these prohibitions would seem, at least at present, to create an absolute ban" on the use of medical marijuana on any school setting.

Yet a subsequently passed statute requires nonpublic schools to create policies that authorize the use of medical marijuana by a student who requires it (presumably for a compelling medical reason).

NJSA18 A-40-12.22 in part states that a Board of Education or Chief School Administrator of a nonpublic school must develop a policy authorizing parents, guardians and primary care givers to administer medical marijuana to a student while the student is on school grounds, aboard a school bus or attending a school sponsored event.

The statute goes on to further state that the minimum features of such a policy would allow for protocols to be established for proper use, provide for the manner in which authorization for the administration of the drug is issued, establish certain locations where the drug may be administered (the prohibiting any inhalation or smoking of the drug), etc.

This obviously doesn't make sense; why treat public and private schools differently when it comes to marijuana as a medicine? It's something that public policy is going to have to sort out. The CUMMA, however, once again, comes into conflict with the LAD, which reaches all "places of public accommodation," including schools. The LAD requires that schools "reasonably accommodate" disability, and if the use of medical marijuana resembles such a "reasonable accommodation," then our position would be that the school must allow reasonable use notwithstanding the provisions of CUMMA because the LAD, and our view, would supersede those provisions.

Once again, it's all about what the "reasonable accommodation" is, not what the "moral" policies of the school might otherwise be.

What about recreational use? What's the status of the law on that?

Right now, the law in New Jersey remains that it is criminal to use medical marijuana for a recreational purpose, whether it's been medically authorized or not. "Improper medical" use of marijuana, in other words, is just as illegal as someone using it who doesn't really need it.

Yet Assembly Bill A-3581, introduced by Assemblyman Reed Gusciora and Tim Eustace, would legalize most recreational marijuana use. The minimum age for proper use would be 21 or over. The Bill presently stands at a fairly complex 50 pages, but there are a few pieces that are potentially pertinent to workplaces and schools that you should know about.

Section 21, for example, regarding the workplace, would not compel employers to permit or accommodate illegal use or distribution of marijuana in the workplace and would allow employer policies to stop this. Yet the same provision would prohibit an employer from refusing to hire or employee a person, or take any adverse action against the person, who uses recreational marijuana, unless the employer has a "rational bases" for doing so.

The effect of this provision would be to stop an employer from discriminating against you simply because you use marijuana recreationally, on your own time and off of work premises.

As to schools, there's a provision that indicates that nothing in the Bill is intended to "permit" any person to possess, consume, use, display, transfer, distribute, sell, transport or grow marijuana items in a school [or at other similar locations].

Obviously, this reinforces the idea that at present, there's to be no recreational use of marijuana in a school, but that's no surprise; the same rules exist as to tobacco and alcohol.

All this seems very confusing, what should I do if I don't think my question has been answered?

Contact the attorneys at Costello & Mains. We offer free phone consultations and, if we think we can help you, free in-person meetings. All of our work is "contingent," which means that there's no fee unless we are successful for you.

The landscape of Civil Rights constantly evolves. Changes in marijuana rights are one of the areas where civil rights law is going to need to adapt quickly.

At Costello & Mains, we've been handling this work for years. We're ready to assist you as a landscape continues to evolve. Call us for a free consolation today.