Several recent decisions out of NJ serve as a strong reminder to tread very carefully before taking an adverse action against an applicant or employee for suspected or actual off-duty marijuana use.
In one recent case, the NJ Attorney General preliminarily found that a telecom company violated New Jersey’s anti-discrimination law by refusing to hire a job applicant after he tested positive for marijuana as a result of medical marijuana use. In another recent case, an administrative law judge reinstated a Jersey City police officer to her job after she was fired for off-duty marijuana use. Without getting into the weeds of either of these cases (pun intended), the takeaway message for employers is to review their drug-related policies and protocols to ensure that they do not run afoul of the ever-changing legal landscape.
Generally speaking, in many states including NY, NJ, and CA, an employee’s off-duty use of marijuana cannot be the reason for any adverse employment action, whether the employee is using marijuana for medical or recreational purposes. Given the vigorous enforcement of such laws we are now seeing, and the fact that there are many nuances to such laws of which employers need to be aware, employers would be wise to work closely with legal counsel to ensure compliance.