Inside the final two weeks, a potential worker filed swimsuit towards a trucking firm alleging violations of the state’s anti-discrimination legal guidelines. The idea of the criticism focuses on the worker’s standing as a licensed affected person beneath New Jersey’s medical marijuana program. In Hunt v. Matthews Worldwide Corp. et al.,[1] the plaintiff alleges that the employer refused to rent him after a pre-employment drug display screen returned a constructive THC outcome. Mr. Hunt claims that he disclosed his standing as a licensed medical marijuana affected person earlier than the take a look at and in addition made a number of makes an attempt to debate identical with the defendant. After allegedly making no effort to talk with him, Mr. Hunt claims that the employer withdrew a suggestion of employment in violation of CUMCA and New Jersey’s anti-discrimination legal guidelines. [2]
Although this case remains to be within the early levels of litigation, it highlights the competing pursuits of staff and employers beneath New Jersey’s hashish legal guidelines.
On the one hand, each legal guidelines have created robust protections for workers and candidates. Each the CUMCA and CREAMMA expressly prohibit adversarial employment actions based mostly solely on the worker’s standing as a registered affected person beneath the state’s medical marijuana program or because of a constructive THC take a look at. [3] However, neither regulation restricts an employer’s proper to advertise a drug- and alcohol-free office,[4] nor does both regulation prohibit an adversarial employment motion if the worker is utilizing hashish at work, or noticeably beneath the affect.[5] The satan, as they are saying, is within the particulars.
As seen in Hunt v. Matthews, drug testing is a significant supply of competition. To be clear, CREAMMA permits for a number of types of drug testing: pre-employment screening; affordable suspicion of use at work; following a work-related accident; or, randomly pursuant to an employer’s drug-testing coverage.[6] With that stated, the Act imposes two vital restrictions on that testing. The drug take a look at should embody each “scientifically dependable goal testing strategies and procedures, similar to testing of blood, urine, or saliva;” and (2) a bodily analysis carried out by “a person with the required certification to opine on the worker’s state of impairment…associated to the usage of hashish.”[7]
Fortuitously, the governing physique chargeable for establishing the certification course of – the New Jersey Hashish Regulatory Fee (CRC) – has quickly waived the second prong pending adoption of formal guidelines.[8] With that stated, it stays to be seen how the courts will tackle the waiver, to not point out how lengthy it should final. And within the absence of a bodily examination, it stays tough for employers to find out whether or not an worker is “beneath the affect,” provided that THC can stay within the physique days after ingestion.
There are further concerns beneath the medical marijuana regulation. If a drug take a look at comes again constructive for THC, employers are required to inform the worker, in writing, of their proper to offer a “reputable medical clarification” for the constructive outcome.[9] The worker then has three working days to offer the required info which might embody authorization for medical hashish, proof of registration within the state’s medical marijuana program, or each.[10] Assuming Mr. Hunt’s allegations are true, these are the particular failings that landed Matthews Worldwide in court docket.
Employment practices usually are not the one concern. Within the realm of New Jersey employees’ compensation, employers are additionally navigating the distinctive implications of medical marijuana. Most lately, the New Jersey Supreme Courtroom addressed the Compassionate Use Act in Hager v. M&Ok Building.[11] Right here, the court docket decided that medical marijuana prescribed to deal with an injured employee could represent affordable and crucial care beneath The New Jersey Staff’ Compensation Act.[12] Because of this, the court docket ordered the employer to reimburse Mr. Hager for the continuing prices of his medical marijuana.
As a last-ditch effort to thwart compensability, the employer in Hager argued that compliance with the court docket’s order to reimburse medical marijuana bills violates federal U.S. drug coverage, particularly, the Managed Substances Act. Beneath federal regulation, marijuana remains to be listed as a Schedule I drug, and the employer argued that cost of identical would represent against the law. The court docket addressed this concern by citing the federal authorities’s reluctance to intrude with state medical marijuana legal guidelines and concluded that actions in accordance with a court docket order wouldn’t qualify as aiding and abetting against the law.
Because of this, the precedent set by Hager has created better entry to medicinal marijuana within the office. Accordingly, employers should additionally think about an injured employee’s therapy for licensed medical marijuana to keep away from discriminatory practices.
Chartwell Regulation will proceed to watch the Hunt v. Matthews case because it proceeds by way of litigation, together with developments on medical marijuana therapy within the employees’ compensation system. Within the meantime, employers ought to think about reviewing, and updating, their drug-testing insurance policies with the advantage of skilled counsel. This will embody suspending sure varieties of drug-testing, or within the various, coaching administration on affordable suspicion determinations.
[1] NJ Superior Courtroom, Regulation Division Hudson County, Case Quantity 00218-22, Grievance filed January 18, 2022.
[2] It is very important observe that this historical past is taken straight from the plaintiff’s allegations in his criticism. As of the circulation of this text, an Reply to the Grievance has not but been filed, and these info haven’t but been established in a court docket of regulation.
[3] N.J. Stat. § 24:6I-6.1(a); N.J. Stat. § 24:6I-52(a)(1).
[4] N.J. Stat. § 24:6I-52(b)(1)(a).
[5] N.J. Stat. § 24:6I-6.1(c)(1).
[6] N.J. Stat. § 24:6I-52(a)(1).
[7] N.J. Stat. § 24:6I-52(a)(1).
[8] CRC Preliminary Guidelines, 17:30-2.1(e), August 21, 2021.
[9] N.J. Stat. § 24:6I-6.1(b)(1).
[10] N.J. Stat. § 24:6I-6.1(b)(2).
[11] 247 A.2nd 864, 246 N.J. 1 (2021).
[12] The Courtroom confused that, as with different therapy, competent medical testimony remains to be required to ascertain that medical marijuana is affordable and crucial care beneath New Jersey’s employees’ compensation scheme. 247 A.2nd 864, at 877-78
