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Marijuana, Disability Accommodations, and Employment Discrimination Law

In early 2021, the governor of New Jersey signed into law a bill that, among other things, protected New Jersey workers from certain adverse consequences as a result of their legal use of marijuana off the clock. If you’ve been fired or suffered other negative consequences as a result of your legal marijuanba use, your employer may have violated the law. Get in touch with an experienced New Jersey employment discrimination lawyer right away to protect yourself and your rights.

More recently, the New Jersey Cannabis Regulatory Commission published workplace guidelines that established protections for legal users. One of the biggest takeaways from the commission’s new guidance is that, while employers may still test for marijuana, they may not punish their workers solely as a result of workers’ testing positive in a drug screen for marijuana metabolites (THC).

The new guidelines say that employers seeking to penalize a worker primarily must look for “behavioral indicators” or “physical signs or symptoms” sufficient to support a reasonable suspicion that the employee has attended work while intoxicated. If the employer has identified one or more of these indicators and/or signs, then a positive test result may also be included as part of the employer’s reasonable suspicion about a worker’s having worked while high on marijuana.

Of course, there are ways of contradicting an employer’s assertion that its suspicion was reasonable. A recent case from the District of Columbia shows what we mean. The employee was a woman who arrived at work one day with what some coworkers described as “red and glossy” eyes. She also allegedly spoke at a very low volume. Additionally, she tested positive for THC. The employer declared her to be intoxicated and fired her.

The employee had evidence that countered each of these points. She testified that her brother had overdosed and was admitted to the hospital. During hours when she’d normally be resting, she was either at the hospital, taking her mother home from the hospital, or traveling between her home, her mother’s home, and work. In other words, she had been crying and had missed an entire day’s sleep, which allegedly explained her red eyes and quiet speech. Additionally, she testified that she had not used marijuana on the day in question, but had used it on a previous day, which was what triggered the positive test result.

What proved to be a critical piece of evidence in favor of the worker was the employer’s response on the day in question. The employer’s rules said that, if an employee was so intoxicated that they could not do their job tasks properly, the supervisors should remove that worker from work. Although the employer identified symptoms and behaviors that it alleged indicated marijuana intoxication, the on-site supervisors allowed the woman to work the remainder of her shift. The judge reasoned that, if the supervisors allowed the woman to return to work, then they “did not reasonably believe that Employee’s ability to perform her job was impaired.”

Disability Discrimination and Reasonable Accommodations

Some research indicates that marijuana potentially has useful benefits with regard to managing inflammation and chronic pain, reducing anxiety, and controlling nausea and vomiting brought on by chemotherapy treatment, according to WebMD. With the evolution of marijuana laws, the possibility exists that workers might use marijuana to treat disability-related issues.

If you notify your employer that you have a condition that qualifies as a disability under the Americans With Disabilities Act and/or the Law Against Discrimination and that you desire an accommodation, then your employer is required to engage in a “good-faith interactive process” with you for finding a reasonable accommodation. The employer must then provide you with that accommodation unless doing so would impose an “undue burden” on the employer. An employer’s failure to engage in the interactive process or failure to provide you with an accommodation (excluding cases of undue burden on the employer) may give you a strong claim for disability discrimination.

The law regarding things like marijuana is continuing to evolve and, with it, the laws that protect workers from illegal forms of employment discrimination. If you think that your employer’s response to your marijuana use has violated the Law Against Discrimination and/or federal law, then you need an experienced legal advocate on your side. Count on the knowledgeable New Jersey disability discrimination attorneys at Phillips & Associates to provide you with the keen advice and strong advocacy you need. To find out more about how we can help you with your situation, contact us online or at (866) 530-4330 to set up a free and confidential consultation today.

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