Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
Under New Jersey’s Compassionate Use Medical Marijuana Act enacted in 2010, registered physicians may prescribe medical marijuana to qualified individuals for the treatment of certain conditions. As designed and implemented under prior state administrations, it was often hard for medical marijuana patients to qualify and difficult for cultivators to operate. And previously, the qualifying conditions approved for treatment with marijuana were limited to a few select conditions for debilitating illnesses such as HIV, ALS, MS, IBS, Crohn’s disease, terminal cancer or other terminal illnesses.
However, last month Governor Phil Murphy issued an Executive Order for a wide ranging expansion of New Jersey’s medical marijuana program with significant changes to the number of approved conditions for treatment, the cost for registration, dispensary locations, as well as other immediate and future changes which will significantly impact the use of medical marijuana in state. Under this expansion, the qualifying conditions eligible for treatment with marijuana now include relatively common medical illnesses such as anxiety, migraines, Tourette’s syndrome, as well as chronic pain related to musculoskeletal disorders and chronic visceral pain. According to Governor Murphy, this expansion is aimed at changing “the restrictive culture of [New Jersey’s] medical marijuana program to make it more patient-friendly.”
The program will also cut registration and renewal fees from $200 to $100 every two years, with senior citizens and veterans added to the category of patients who pay only $20. And while patients must still be referred to the program by physicians who are registered and in good standing to practice in the State, this amendment has abolished the public physician registry, which will allow physicians to prescribe marijuana for patients without appearing on a public roster. In a state with roughly 28,000 physicians, just 536 physicians were registered under the prior public registry system. According to Murphy, many physicians were deterred from registering out of fear of the stigma associated with prescribing marijuana which is still illegal under federal law. As a result, the old public registry requirement had the effect of limiting patient access to registered providers who could prescribe medical marijuana. Medical marijuana expansion also allows Alternative Treatment Centers to apply to open satellite locations. New Jersey currently has only 5 (soon to be 6) approved Alternative Treatment Center statewide. Recent reforms will also allow registered caregivers to assist more than one qualified patient. As a result of these changes and others, New Jersey has added approximately 1,500 patients to the roughly 18,000 current medical marijuana users registered for this program in the past month alone.
Answer: Employers Can Expect to See an Increase in Legal Issues with an Increase in Medical Marijuana Use in the Workforce.
The rapidly evolving landscape of the new medical marijuana law presents several challenges for New Jersey employers. First and foremost, New Jersey employers can expect to see an increase among employee participation in the medical marijuana program. More and more employees will now not only qualify for medical marijuana status, but they will also have easier access to the program. In turn, employers will most certainly see an increase in legal challenges, most of which have yet to be explored and/or resolved by way of litigation. These challenges may include, but are not limited to the following:
Drug Testing Policies & Procedures: While New Jersey law does not prohibit employers from performing drug tests for marijuana or having “zero tolerance” drug policies, all employers should review their workplace policies and procedures to consider how they address not only illegal drug use and alcohol abuse, but also the misuse or abuse of validly prescribed medications. These policies should address those employee performance issues which may result in discipline or termination of an employee for use or abuse of alcohol and other medications, the procedures that an employer will follow in the case of suspected use / abuse, and any other employer protocols and policies for drug testing whether post-offer of employment, randomly, or based on reasonable suspicion. Employers will also be forced to revisit their handbooks.
Off Duty Policies: Currently, New Jersey’s medical marijuana laws do not allow the possession or use of marijuana while on the worksite and employees are not permitted to be under the influence of alcohol or drugs while on the worksite. However, and regardless of where medical marijuana is used, employers may need to revisit policies that prohibit certain kinds of off-duty conduct. In doing so, employers will need to consider New Jersey’s medical marijuana law before refusing to hire, disciplining or terminating employees for off-duty medical marijuana use.
Disability Discrimination & Employee Discipline/Termination: While marijuana is still illegal under federal law, an employee’s status as a qualified medical marijuana user may afford him or her protection under the New Jersey Law Against Discrimination (“NJLAD”) as well as other state or federal antidiscrimination, disability and medical leave laws. As a result, before an employer refuses to hire, fire or discipline an employee who presently themselves as a qualified medical marijuana user, employers may need to engage in an interactive process with that employee to determine whether they must make a reasonable accommodation for that individual’s medical marijuana use, just as they would for employees with other recognized disabilities.
Privacy Concerns: In New Jersey, employees eligible to participate in the medical marijuana program must carry a Medicinal Marijuana Program (“MMP”) card at all times. The MMP is considered a medical record and should be treated as confidential. Employers must be mindful of how they verify their employees’ medical marijuana status and with whom they share this information so as not to run afoul of privacy laws.
Our office will address each of these issues, among others, in its new series aimed at assisting employers navigate the emerging guidance for medical marijuana use in the workplace. If you have any specific questions regarding medical marijuana use in the workplace, please feel free to contact us directly.