On January 18, 2010, the New Jersey Compassionate Use Medical Marijuana Act was signed into law (P.L.2009, c.307). This law, which becomes effective on July 1, 2010, decriminalizes medical use of marijuana under New Jersey state law for patients who legally use medical marijuana to alleviate symptoms or side effects of treatment relating to certain “debilitating medical conditions” (such as AIDS, HIV, and cancer). Those individuals who qualify are issued identification cards and their names are maintained on a confidential registry.

The law specifically provides that employers have no obligation to accommodate medical use of marijuana “in the workplace,” which at a minimum seems to mean that employers need not allow employees to use marijuana at work as a reasonable accommodation for a disability. What remains unclear, however, is the extent to which New Jersey employers must accommodate the use of medical marijuana outside of work, and whether employers may take an adverse employment action against an applicant or employee who tests positive for legally consumed medical marijuana.

Courts in several other states that have wrestled with the interplay between state medical marijuana laws and relevant disability discrimination laws, have held that employers may continue to enforce their drug and alcohol policies without regard to whether the positive drug test resulted from medical marijuana use. However, at least one court (in Oregon) has suggested that employers must make a “case by case” assessment of whether to allow off-duty medical marijuana use.

New Jersey employers’ and employees’ rights and obligations under the Act will likely be fleshed out through similar court cases and agency decisions in the months and years to come, as well as in regulations which will soon be drafted by the Commissioner of Health and Senior Services (in consultation with the Department of Law and Public Safety).

In the meantime, employers should carefully review their policies on drug use and drug testing for compliance with this law, and should tread carefully when confronted with an employee or applicant who tests positive for marijuana and claims same was for medical purposes.

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