Our Employees Travel to States Where Marijuana is Legal
Question: How does the legalization of marijuana in certain states potentially affect us as a NJ-based employer? We have employees who travel to states where marijuana has been legalized. What is our risk if one of our employees uses marijuana while they are in such a state? Since we have a Drug-Free work place policy, does it make sense for us to add any language to protect ourselves? Also, medical marijuana is legal in NJ. Should we change our policy on a drug free workplace to address this?
Answer: As of today, we do not know of any case in the country where a state’s marijuana laws diminished an employer’s right to prohibit its use among employees. That does not mean those policies have not been challenged. Just this April, for example, a New Jersey man sued his employer for suspending him on the grounds that he was a medical marijuana user. Bottom line: it may be a while before we know where this is going.
Next, only two states have legalized marijuana – Colorado and Washington. We have not yet researched how those issues are handled in those states.
Medical marijuana, on the other hand, is legal in about 25 states. One of those states is New Jersey. In states where medical marijuana is legal, many employment-related issues are unsettled, and quickly evolving. One of the questions employers often face in New Jersey is: can we terminate someone for failing a drug test, when the drug is legally prescribed marijuana? Currently, in New Jersey, yes – the employer can terminate someone for legal medical marijuana use. In fact, employers’ right to do so is written into the statute. But, with the quickly changing views on marijuana use, it is unclear how long this portion of the law will remain in effect. With respect to how other states deal with the issue, and how they are permitted to deal with these various issues under their respective medical marijuana laws, we would need to look into it on a state-by-state basis (since each states’ laws are different).
*Provided by Michael Kulakowski, attorney at Powell Trachtman
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MEA’s goal is to provide current, detailed and useful information to EXPERT HOTLINE callers, but our responses do not constitute legal advice about what you should or should not do in a particular situation. You should always consult legal counsel, in the context of a confidential attorney-client relationship, before taking any action that could have legal implications for you or your business. If legal services are needed, MEA members are entitled to a discounted fee arrangement with the Powell Trachtman law firm, which serves as MEA’s general counsel. For more information, contact Michael G. Trachtman at email@example.com.