By: Chantal N. Guerriero, Esq. and Ty Hyderally, Esq.

For the first time in New Jersey, voters approved the use of recreational marijuana for those who are ages twenty-one and older, in hopes of generating both jobs and revenue for the state. This will undoubtedly lead to a plethora of questions concerning whether, in the workplace, employees who test positive for drug use may thereafter be retaliated against or terminated.

In years past, there have been discussions concerning whether and when employers may retaliate against employees for positive drug tests resulting from medical marijuana use. In that context, New Jersey passed a bill which prohibits employers from discriminating against employees based on their status as a registered medical marijuana user.  Such employer discrimination may violate the New Jersey Law Against Discrimination, because the employee’s use of the substance is for purposes of treating an illness or disability.  For example, in a New Jersey Supreme Court case ruled on in March of 2020, Wild v. Carriage Funeral Homes, Inc, et al.,(A-91-18) (082836), the Court determined that the Plaintiff, who was fired after informing his employer that he used medical marijuana, could proceed with his claim under the LAD.

That being said, employees may in some cases be permitted to reprimand employees if and when they are found to be using medical marijuana in the work place. Thus, it can be expected that the same will likely be true if employees are found to be using recreational marijuana in the workplace, even after it is legalized.

Going forward, for employees who simply have the “status” of recreational marijuana users outside of the workplace, and who indeed test positive for marijuana use, what, if any legal recourse might they have if their employers retaliate against them? While it may be too soon to tell in New Jersey, states that have legalized recreational use of marijuana, like Colorado, have dealt with this question. In Coats v. Dish Network, LLC, 350 P.3d 849 (2015), the court held that an employee could in fact be terminated for legal, off duty marijuana use. The law on this subject is yet to be determined in New Jersey.

That being said, if the employer’s drug test was administered in an unlawful manner, an employee may have recourse. In New Jersey, employers may generally drug test employees where the employee is in a “safety sensitive” position. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). Safety sensitive positions are those where the employee’s duties are so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to coworkers, to the workplace, or to the public at large. All other employees may be tested only “for cause,” or with the employer’s reasonable justification.

As the law develops, many recreational marijuana use cases will undoubtedly be fact-sensitive and import heavy implications with respect to the New Jersey Law Against Discrimination, the Occupational Safety and Health Act, as well as New Jersey’s whistleblower law.            

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