{"id":1619,"date":"2024-08-15T15:55:54","date_gmt":"2024-08-15T19:55:54","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/cannabis\/?p=1619"},"modified":"2024-08-15T15:55:54","modified_gmt":"2024-08-15T19:55:54","slug":"employers-must-engage-in-the-interactive-process-with-medical-marijuana-users-and-cannot-refuse-to-hire-a-job-applicant-based-on-marijuana-use-alone","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/cannabis\/2024\/08\/15\/employers-must-engage-in-the-interactive-process-with-medical-marijuana-users-and-cannot-refuse-to-hire-a-job-applicant-based-on-marijuana-use-alone\/","title":{"rendered":"Employers Must Engage in the Interactive Process with Medical Marijuana Users and Cannot Refuse to Hire a Job Applicant Based on Marijuana Use Alone."},"content":{"rendered":"

By: Kathleen O’Malley<\/a> and Danielle Dwyer<\/a><\/p>\n

Recently, Attorney General Matthew J. Platkin announced a Finding of Probable Cause<\/a> by the New Jersey Division on Civil Rights (DCR) against Prince Telecom LLC (Prince) for declining to hire a medical marijuana user as a cable installation technician.\u00a0 The DCR found the job applicant was subject to disability discrimination in violation of the New Jersey Law Against Discrimination (LAD).\u00a0 The basis for the DCR\u2019s determination was Prince\u2019s rescission of a job offer after the applicant, a medical marijuana user, tested positive for cannabis in connection with a pre-employment drug screen.<\/p>\n

Prince, a company that constructs and maintains telecommunications and cable systems, offered a technician job to the applicant pending a drug test.\u00a0 The applicant informed the company that he had a medical marijuana prescription and used marijuana to treat a disability.\u00a0 When the applicant tested positive for cannabis, he provided his medical marijuana prescription card to the company, after which Prince rescinded the job offer.\u00a0 Prince maintained that it could not provide the applicant with any accommodation given the safety-sensitive nature of the job duties of the position (such as, driving company vehicles, operating machinery, working with electrical wires, climbing ladders and lifting 50 pounds or more).\u00a0 According the DCR, Prince assumed that hiring a medical marijuana user to perform such tasks would expose the company to \u201cenormous\u201d liability.<\/p>\n

The DCR issued a Finding of Probable Cause because Prince did not ask the applicant for additional information about the nature of his disability; how often and what time of day the applicant used marijuana; and what effect, if any, his medical marijuana use might have on him during work hours.\u00a0 By failing to initiate discussions of that nature with the applicant, the DCR concluded that Prince did not meet its obligation to engage in the interactive process.\u00a0 Under the LAD, employers have an affirmative duty to consider reasonable accommodations for applicants and employees.\u00a0 Broadly speaking, this means an employer should have a dialogue with a disabled applicant or employee and should ask questions to determine whether the individual can perform the essential functions of the job with or without a reasonable accommodation.\u00a0 Once the employer has sufficient information from the individual and\/or the individual\u2019s healthcare provider about the disability and any proposed accommodations, the employer can evaluate whether it is able to offer a reasonable accommodation without posing an undue burden on the company.\u00a0 Employers who fail to engage in this interactive process violate the LAD\u2014which is exactly what the DCR has accused Prince of doing.<\/p>\n

While the LAD protects individuals with disabilities, it is also worth noting that both medical and adult marijuana use are legal in New Jersey and the state has enacted protections for the use of marijuana.\u00a0 The Jake Honig Compassionate Use Medical Cannabis Act<\/a> (CUMCA) prohibits an employer from taking an adverse employment action against an employee or applicant (e.g., terminating or refusing to hire) based on the fact that the employee is registered as a medical marijuana user.\u00a0 The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act<\/a> (CREAMMA) protects adult use of marijuana and prohibits employers from taking adverse employment actions due solely<\/em> to a positive drug test for cannabis.\u00a0 CREAMMA also has specific and stringent protocols with respect to drug testing in the workplace.\u00a0 Because CREAMMA went into law after Prince rescinded the applicant\u2019s job offer, the DCR did not review Prince\u2019s conduct to determine whether it violated that statute as well.<\/p>\n

Notably, the DCR did not<\/em> find that Prince had to accommodate the applicant\u2019s use of marijuana in workplace or that it had an obligation to hire him.\u00a0 The agency found that Prince had an obligation to engage in the interactive process\u2014to gather information sufficient to consider whether it could have reasonably accommodated the applicant\u2019s disability.\u00a0 If Prince had learned the applicant used medical marijuana after work hours and would not be impaired or under the influence when reporting for duty, Prince may have been able to reasonably accommodate the applicant\u2019s disability.\u00a0 The laws in New Jersey are clear that employers have a right to maintain a drug-free workplace and do not have to accommodate use of medical marijuana in the workplace or during work hours.\u00a0 Based on the DCR\u2019s finding, Prince\u2019s error was that it made too hasty a decision and did not gather any information from the applicant to determine whether it could have accommodated his disability.<\/p>\n

Of note, a Finding of Probable Cause is not a final determination\u00a0on the merits.\u00a0 It means the DCR determined that there is sufficient evidence to warrant further proceedings against Prince.\u00a0 The parties will now have the opportunity to resolve the case voluntarily through conciliation. \u00a0If the parties cannot resolve the matter, the case will move to the Office of Administrative Law or the Superior Court for further adjudication.<\/p>\n","protected":false},"excerpt":{"rendered":"

By: Kathleen O’Malley and Danielle Dwyer Recently, Attorney General Matthew J. Platkin announced a Finding of Probable Cause by the New Jersey Division on Civil Rights (DCR) against Prince Telecom LLC (Prince) for declining to hire a medical marijuana user as a cable installation technician.\u00a0 The DCR found the job applicant was subject to disability … <\/p>\n

Continue reading “Employers Must Engage in the Interactive Process with Medical Marijuana Users and Cannot Refuse to Hire a Job Applicant Based on Marijuana Use Alone.”<\/span><\/a><\/p>\n","protected":false},"author":592,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[63,464,1085,1086,1083,12,176,1084],"ppma_author":[930],"class_list":["post-1619","post","type-post","status-publish","format-standard","hentry","category-general","tag-cannabis","tag-cannabis-employment-law","tag-cannabis-in-the-workplace","tag-creamma","tag-dcr","tag-medical-marijuana","tag-new-jersey-cannabis","tag-reasonable-accommodation"],"authors":[{"term_id":930,"user_id":592,"is_guest":0,"slug":"dmdwyer","display_name":"Danielle M. Dwyer","avatar_url":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-content\/uploads\/sites\/35\/2022\/12\/dwyerdanielle-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts\/1619","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/users\/592"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/comments?post=1619"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts\/1619\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/media?parent=1619"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/categories?post=1619"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/tags?post=1619"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/ppma_author?post=1619"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}