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A fired worker is testing New Jersey’s state’s cannabis law by suing his former employer, alleging he was wrongfully terminated for marijuana use days after the state legalized the drug.
New Jersey’s top court ruled last year that employers cannot fire medical marijuana patients who use cannabis in their free time. The new marijuana legalization law will extend these protections to those 21 and older, but whether or not that provision applies to workers now has been debated.
Paul Myers, 53, filed the lawsuit in state Superior Court in Burlington County last month. He alleges National DCP, a supply chain company that services Dunkin’ Donuts franchises, broke the law when firing him from its Westampton facility earlier this year.
Myers was hired at the facility in 2019. He has Crohn’s disease and also underwent treatment for cancer shortly after he began the job, according to the complaint. The procedures required him to take extended medical leave, as did his Crohn’s symptoms. He encountered hostility from his employer, the suit alleges, as his need for time off was questioned.
To deal with his ongoing symptoms, Myers’s doctor suggested he use medical cannabis. He began took the advice and was in the process of securing authorization to join the state’s medical marijuana program, according to the complaint.
But three days after Gov. Phil Murphy signed a law that did away with criminal penalties and fines for marijuana use, Myers’s employer asked him to undergo a drug test.
Under the new law, employers can still conduct random and pre-employment drug tests for weed use, but cannot fire, discipline or refuse to hire someone if the result is positive. But they can still ban marijuana use at work. To enforce the rule, they must have a certified Workplace Impairment Recognition Expert on hand to witness impaired behavior by an employee and a positive drug test indicating presence of marijuana in a person’s system.
Unlike alcohol, marijuana stays in a person’s system long after it is used. This makes drug testing for current impairment particularly difficult.
That employment piece of the law has yet to become operational. The state Cannabis Regulatory Commission must still establish rules and regulations, which include developing a program to train necessary impairment experts to enforce it.
Attorneys have noted the confusion as the state sits between two different drug testing policies. Some workplaces have continued to enforce their previous policies, and others have dropped marijuana drug tests altogether, NJ Advance Media has previously reported.
“Doing it creates a potential legal issue and not doing it creates a potential legal issue,” Sheila Mints, a healthcare and cannabis attorney with Capehard Scathard in Mount Laurel, previously told NJ Advance Media of employee drug testing. “You really don’t know what the right thing is to do. Other aspects of the law have not caught up to the legalization part of it.”
National DCP asked Myers to provide proof of authorization to use medical marijuana and gave him three business days to turn around a doctor’s note, the lawsuit states. But he could not get an appointment in time and was ultimately fired.
His lawsuit claims National DCP violated the state Law Against Discrimination, the Jake Honig Compassionate Use Medical Cannabis Act and the new marijuana legalization law.
A request for comment sent to National DCP was not returned. Myers’s attorney did not respond to an email seeking comment.
Amanda Hoover may be reached at ahoover@njadvancemedia.com. Follow her on Twitter @amandahoovernj.