How does Pennsylvania’s new medical marijuana law compare to NJCUMMA?


Norris McLaughlin & Marcus, P.A.

Recently, I participated in a panel discussion for the Greater Lehigh Valley Chamber of Commerce’s 2016 Healthcare Summit.  The discussion focused on the workplace implications of Pennsylvania’s medical marijuana law, which went into effect earlier this year.  As my Pennsylvania colleagues wrote about here, the new law prevents employers from discriminating or retaliating against a candidate or employee because he/she is certified to use medical marijuana.  Under this law, however, employers need not accommodate medical marijuana use at work, and can discipline employees for being under the influence of medical marijuana while at work.

During the panel discussion, I spoke about the experiences New Jersey employers have had in working with our own medical marijuana law, the New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA), which has been in place for several years.  Generally, New Jersey employers have not had to tackle the potentially difficult issues of accommodating employees who are medical marijuana users or who test positive for the drug under “zero tolerance” drug testing policies.  That is because the NJCUMMA does not require employers to accommodate medical marijuana users in the workplace.  There is also ambiguity as to whether employers can take adverse action against an employee based upon either his/her status as a medical marijuana user or a failed drug test.

Commentators had hoped Davis v. New Jersey Transit, No. L-001778-14 (N.J. Super. Cit., Essex Co.) – a case in which the plaintiff was fired for testing positive for medical marijuana – would provide further guidance, but after the employee survived a motion to dismiss, the case settled earlier this year.  The latest test case could be Barrett v. Robert Half Corp., 2:15-cv-06245-CCC-MF, currently pending in the United States District Court for the District of New Jersey.  In Barrett, the plaintiff, a certified medical marijuana cardholder, was fired after he failed a drug test.  He brought a claim under the New Jersey Law Against Discrimination (NJLAD), alleging his employer failed to accommodate his disability by firing him for his medical marijuana use.  The employer’s motion to dismiss in that case is currently pending.

On the legislative front, bills were introduced in the New Jersey Senate and General Assembly in 2014 (and reintroduced in February 2016) to revise the NJCUMMA to prohibit adverse action against employees for off-duty medical marijuana use, unless an employer can prove an employee’s legal use has impaired his/her ability to do the job.  See A.B. 2482, 2016, 217th Leg. Session (N.J. 2016); S.B. 2161, 2016, 217th Leg. Session (N.J. 2016).  And another bill was recently introduced that would put medical marijuana usage on par with other prescription medications.  See S.B. 1294, 2016, 217th Leg. Session (N.J. 2016).

Although Pennsylvania’s and New Jersey’s laws differ, it is worth keeping an eye on legal developments in both states.  If the proposed New Jersey legislation mentioned above ever makes its way into law, the NJCUMMA may suddenly look a lot like Pennsylvania’s law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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