Maxine Neuhauser, Member of the Firm in the Employment, Labor & Workforce Management and Health Care & Life Sciences practices, in the firm’s Newark office, was quoted in NJ.com, in “N.J. Medical Marijuana Patients Win Huge Protections from Being Fired for Flunking a Drug Test,” by Susan K. Livio.
Following is an excerpt:
New Jersey workers can’t be fired if they flunk a drug test because they are medical marijuana patients, a state appeals court has ruled.
The case is likely to reverberate in workplaces for years to come because a state appeals court says medical marijuana patients — as long as they are not using the drug or under the influence at work — are protected by the state Law Against Discrimination.
There are 45,000 registered patients in the program with about 2,000 joining every month, according to the state Department of Health.
“The sweeping effect is you can no longer say, ‘You (tested) positive — you are outta here,’” said Maxine “Mickey” Neuhauser, an employment expert with the Newark office of the Epstein Becker and Green national law firm.
“There had been a general belief that since marijuana is illegal under federal law, employers would not have to accommodate its use by employees, even if they had a prescription for it and using it legally under state law,” Neuhauser said. “This appellate case very strongly came down in the opposite direction following the lead of other states confronted with the same issue.” …
The Wild case is not the first to recognize the disability rights of medicinal marijuana patients. Last fall, a U.S. District Court Judge in Connecticut ruled in favor of a woman who sued a nursing home operator which rescinded a job offer because she was a registered medical marijuana patient and flunked the drug test.
Neuhauser, the attorney who coauthored an analysis of the decision, advises employers “not get hung up on that this is cannabis. Think about it as you would for a prescription for Vicodin or Xanax or Ambien.”
“You might need to go through the reasonable accommodation analysis for those individuals if you became aware of their use,” she said. That analysis includes whether the person can do the job safely if they are under the influence, or will the person medicate off-hours. “You have to focus on the employee’s conduct,” she said.
Related reading:
Act Now Advisory, “New Jersey Appellate Division Permits Medical Marijuana User to Proceed with Disability Discrimination Claims Under LAD,” by attorneys Nathaniel M. Glasser, Maxine Neuhauser, and Anastasia A. Regne.
New Jersey 101.5, “Boss Can’t (Necessarily) Fire You for Medical Marijuana Off-Hours — Court.”
Governing, "Fired for Flunking Drug Tests, Medical Marijuana Patients Win Protections in New Jersey," by Susan K. Livio.
Marijuana Times, "New Jersey Court Rules Medical Marijuana Patients Can’t Be Fired for Failed Drug Tests," by Julia Granowicz.
Calm Effect, "New Jersey Medical Marijuana Patients Win Protections for Drug Tests."
