Our country’s attitudes towards the use of medical and recreational marijuana are rapidly changing. According to a recent Pew report 74% of Millennials, 63% of Gen Xers and 54% of Baby Boomers favor legalizing the use of marijuana. Currently, recreational marijuana is legal in nine (9) states. In addition, thirty (30) states, have legalized the use of medical marijuana, New Jersey and New York among them. As the legalization of marijuana swiftly spreads across our nation, it is expected that the enactment of laws protecting medical marijuana users against unlawful job terminations will increase. However, as things stand now, if an employer in New Jersey finds out you are using medical marijuana you may be fired.
Under federal law, the possession, sale, or use of marijuana is still illegal. Neither the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against those who are disabled, nor the Family and Medical Leave Act (FMLA), which allows qualified employees unpaid leave for their own health condition or to take care of a qualified family member, protects employees from adverse employment actions because of their use of medical marijuana. The Controlled Substance Act, a federal law which is part of the Comprehensive Drug Abuse and Prevention Act, classifies cannabis as a substance that “has a high potential for abuse . . . [and] no currently accepted medical use in treatment in the United States.” The federal Drug Free Workplace Act, which applies to a federal contractors and grantees, requires employers to provide drug-free workplaces as a condition for receiving federal grants.
While no state is found providing employment protection for recreational marijuana use, several states provide explicit employment protection for medical marijuana use. For example, in New York, an employer cannot discriminate against a “certified” patient (one who has a disability) only because of the certified medical use or manufacture of marijuana. In addition, employers in New York must reasonably accommodate the disability associates with the legal marijuana use. Other states which provide similar protections include: Arizona, Arkansas, Connecticut, Delaware, Illinois, Massachusetts, Minnesota, Pennsylvania, and West Virginia.