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About a month ago, Ann Kiernan, a New Jersey attorney who practices preventive law for employers, blogged about one of Jon Corzine‘s last acts as Governor of New Jersey: signing a bill permitting physicians to prescribe marijuana to patients who suffer from such illnesses as cancer, AIDS, and Lou Gehrig’s Disease. In Ann’s article, she raised important questions about medical marijuana use in the workplace and how this bill will affect employers.

The bill, known as the New Jersey Compassionate Use Medical Marijuana Act, will take effect in July 2010. New Jersey will become the 14th state to legalize marijuana. This bill is a victory for many interest groups in New Jersey: those who believe that the criminal justice system needs to be reformed; those who believe that marijuana should be decriminalized; and those who believe that marijuana has beneficial health effects for patients with terminal illnesses. For more information about the benefits of marijuana and why marijuana should be legalized, the Marijuana Policy Project and Americans for Safe Access websites contain a wealth of information.

It is apparently well documented that the medical use of marijuana has beneficial health effects for those who suffer from serious and terminal illnesses. To that end, the stated purpose of New Jersey’s Medical Marijuana Act is to

protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce marijuana for medical purposes.

Since former Governor Jon Corzine signed the bill, a number of New Jersey employer-side attorneys, including Ann Kiernan, have blogged about how employers can legally respond when they learn that an employee or potential employee has been prescribed marijuana. This is a very complex issue because there are federal and state laws against discrimination on the basis of disability. These laws include the Americans with Disabilities Act and the New Jersey Law Against Discrimination. On the other hand, employers have the right to maintain a safe environment for everyone in the workplace.

Various courts in California, Washington, Oregon, and Utah have held that employees who consume marijuana to treat their illnesses cannot sue their employer for disability discrimination. Now, every one of these cases are fact specific and state specific. For example, in California, an employee who was prescribed marijuana for medical purposes failed a pre-employment drug test could not sue for disability discrimination (Ross v. RagingWire Telecommunications). Similar facts arose in Washington state, and in that case, the court held that the employee had no right to sue her employer (Roe v. Teletech Customer Care Management).

Although out-of-state cases are not binding on the New Jersey courts, they are nonetheless persuasive. Still, it remains to be seen how the New Jersey courts will decide when presented similar facts. We simply will not know until, perhaps, the end of this year. (I have no doubt that there will be a medical marijuana case in an employment setting sometime this year.)

In any event, there are other facts involving medical marijuana in employment settings that have yet to be litigated. For example, it remains to be seen whether a New Jersey employee who has worked for a company for ten years without incident suddenly acquires a terminal illness, is prescribed marijuana, and is subsequently discharged as a result. Will the New Jersey courts favor the employee who was discharged for disability discrimination, or will the courts rule in favor of the employer?

We don’t know the answers to any of these questions until this is litigated.

In the meanwhile, employers and employees alike should familiarize themselves with New Jersey Compassionate Use Medical Marijuana Act. Employers and employees may find this interview helpful as well as these two articles: “The unintended impact of New Jersey’s new medical marijuana law on the workplace” and “When Medical Marijuana Laws Conflict with Company Policies.”

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1. Disability, Sports, and “Performance Enhancing Drugs”