Employee and candidate discrimination for state-legal marijuana use has continued to be a hot-button issue over the last few years. Recently, we covered multiple states, such as New York, Washington, California, and Minnesota, which have already enacted proactive policies against discrimination of candidate and employee cannabis use. According to an article released by the New Jersey Department of Law & Public Safety on July 2, 2024, New Jersey Attorney General Matthew J. Platkin has acted against an employer who allegedly discriminated against a medical marijuana patient.
The final ruling on this case may be a landmark for other employers and human resources professionals, particularly those in states where medical marijuana use is legal. Employer action and candidate rights for cannabis use where use outside of work is legal continue to remain a gray area in some states.
What happened?
A Delaware-based telecom company allegedly violated New Jersey's anti-discrimination law by refusing to hire an applicant after he tested positive for THC. The applicant was legally allowed to use medical marijuana. In a preliminary investigation, the Attorney General and the Division on Civil Rights found that the job applicant produced "sufficient evidence” of discrimination. Here is a short timeline of the allegations in the case:
- The candidate was offered the job pending a drug test
- The candidate presented his medical marijuana card to explain positive results on the test related to medical use and request accommodation
- THC was present in the test, and the job offer was retracted
- The candidate contacted Human Resources to explain the situation but never received an adequate response
To take a closer look at the case, read more here.
Possible grounds for legal action
The Attorney General has pursued legal action, claiming the candidate's right to disability accommodations was violated – specifically, under the New Jersey Law Against Discrimination (NJLAD), which bars employment discrimination based on a job applicant's or employee's disability. While employers are not necessarily required to hire medical marijuana patients under NJLAD, Attorney General Platkin says the employer should have discussed the situation with the job applicant to determine if a reasonable accommodation could have been provided before rescinding the job offer.
"New Jersey's civil rights laws require that employers discuss how to develop accommodations that will allow employees with disabilities to perform their duties…But this employer cut off all communication, refusing to even try to work with their candidate. Their failure to act violates the law, and we will not tolerate that."
Based on current evidence, the Division on Civil Rights found probable cause against the company. However, this is not a final ruling, and the employer might still present evidence that disputes the state's allegations. The parties will have an opportunity to voluntarily settle before the Attorney General's Office prosecutes the case, and the employer still has a right to defend itself against these charges.
Employer responsibility in other cannabis legal states
This is not the first time an employer has been in the hot seat for rescinding a job offer based on cannabis use in New Jersey. If the court rules in favor of the plaintiff, the course of interpretation on actionable employee rights violations could be changed in future related cases. This case is a reminder of the importance of engaging in meaningful conversations with candidates who have disabilities. It also highlights how keeping an eye on evolving laws and regulations related to medical marijuana and employment can be crucial, especially in states where cannabis is medically or recreationally legal. As the interpretation of new regulations evolves regarding how employers handle legal cannabis use, employers should also consult with their legal counsel before taking action.
