Medical marijuana in the workplace—yea or nay

Wading through your email after a week’s vacation can be a daunting task, especially when you have signed up for industry-related Google alerts and conscientiously scan them looking for something relevant to your audience. It’s definitely a sign of the times when the most interesting item I found was about a man who claims that a South Jersey manufacturer fired him for using medical marijuana.

Why did I find this so interesting? While on vacation, my husband and I had a conversation about medicinal marijuana and legalizing the drug overall. This issue is being debated across the country as some state governments have legalized the drug for both medicinal and recreational use and others for medicinal purposes only. According to a recent poll, 61 percent of Americans believe pot should be legal and 88 percent believe medicinal use should be legal. I was happy to see my state (Georgia) approve the use of medical marijuana, which appears to have benefits for treating myriad conditions and symptoms.

Naturally, part of this debate focuses on the downside associated with consumption, which is all some of us have heard for decades. Remember “Reefer Madness?” Apparently, some still subscribe to the belief that marijuana, Mary Jane, pot, weed, or whatever you call it, is the devil.

A child of the '60s, I had a very conventional, somewhat sheltered upbringing in a small town in the deep south. The first time I even heard of marijuana was in my third year of college when it was brought to my attention (gossip) that a good, motorcycle-riding, Jimi Hendrix-loving friend of mine indulged. You may find this difficult to believe, but I have never partaken—have never even been offered a joint. (Yes, I’ll take a polygraph.) And I’m pretty sure that I put myself in harm’s way far more by riding on the back of his motorcycle driven like a bat out of Hades than if I had tried pot with him.

Why am I telling you this? Just to give you a little background about where I’m coming from before continuing this discussion of medicinal pot in the workplace, which brings me back to my conversation with my husband. Hubby leans toward opposing legalizing marijuana beyond doctor-prescribed medicinal use; I am in favor of legalizing it altogether. We each have our reasons for thinking the way we do. But one thing we do agree on is the possible ramifications of legalization on businesses.

I had a drug test before I was hired at FMA, and I’ll bet you had one before you were hired for your job also. I had no problem with that, and I fully support an employer’s right to test for drugs, including alcohol, and to set guidelines for continued employment, as long as they don’t violate constitutional rights. This may not seem fair to some, but not everyone agrees on what is fair.

Covering this topic for the California-based North Bay Business Journal, Cynthia Sweeney asked, “What should an employer do, for instance, if a new employee tests positive for cannabis? Since use of cannabis for medicinal purposes has been legal since 1996, what if a worker presents a doctor’s note for it? Are employees now allowed to smoke, vape or nibble cannabis edibles while at work? What if an accident occurs and an employee subsequently tests positive for cannabis?

“The short answer is that employers do not have any obligation to accommodate cannabis use.

“Like John Travolta explained in the film ‘Pulp Fiction,’ ‘It’s legal, but it ain’t a hundred percent legal.’”

Sweeny noted that “Although legal issues have arisen over the termination of workers for cannabis use, employers are protected by language in the law (Prop. 64).”

So, what about Joseph Cobb III, who has sued Bridgeton, N.J.-based Ardagh Glass, a glass maker, claiming he was let go despite his “stellar work performance?” Cobb is seeking compensatory and punitive damages.

According to an article on cannabislaw.foxrothschild.com, “the New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA), was enacted in 2010. To date, the statute does not include specific provisions requiring employers to accommodate an employee’s use of medical marijuana. But that may change if the legislature adopts amendments to the NJCUMMA which have been proposed in both the State Assembly and the State Senate, NJ A2482 [2016] and NJ S2161 [2016].

“These identical proposals would enact two major changes. First, before an employer could take an ‘adverse employment action’ against an employee who is a lawful medical marijuana user on the basis of either (1) the employee’s status as a medical marijuana user or (2) a positive drug test, the employer would be required to show–by a preponderance of the evidence–that the employee’s use of medical marijuana, ‘has impaired the employee’s ability to perform the employee’s job responsibilities.’ The legislation defines ‘adverse employment section’ to include decisions regarding hiring, firing, and employee compensation.

“Second, and relatedly, any employee or job applicant who is a medical marijuana user and tests positive under an employer-required drug test must be provided with an opportunity to show a ‘legitimate medical explanation for the positive test result,’ and would be given three days to do so. Such an explanation would include a doctor’s note recommending the use of medical marijuana or an identification card showing the employee is a registered medical marijuana user.”

It will be interesting to see the outcome of Cobb’s case and whether the amendments to the New Jersey law are adopted. One thing’s for sure, while each of us may have different views on this topic, the issue isn’t going away anytime soon. I’m just waiting to see the first “if you have been terminated from your job because of medicinal marijuana use, please call the law offices of XYZ” commercial.