Articles Posted in Medical Marijuana

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At present, medical marijuana may be used legally in 33 states and D.C., and recreational marijuana in 11 states and D.C.  Marijuana is illegal for any purpose in 17 states and remains illegal under federal law.  Many employers deny prospective employees’ employment and fire current employees for marijuana use—whether or not their use is actually illegal—based on drug test results.  For employers attempting to discourage illegal drug use, the use of marijuana drug test results to make employment decisions is problematic due to shortcomings in drug testing, making it nearly impossible to determine whether marijuana use was legal.

According to the annual Quest Diagnostics Drug Testing Index, the number of workers and job applicants who tested positive for marijuana climbed 10 percent from 2018 to 2019.  Drug tests, however, are highly unreliable: one could fail a drug test even without the recent use of marijuana.  Urine tests for marijuana metabolites can only show recent marijuana use, not intoxication or impairment.  This is because of the time required between smoking and your body breaking down THC (tetrahydrocannabinol), the active ingredient of marijuana, to the metabolites that are eliminated in the urine.  THC remains detectable in bodily fluids for up to 90 days after last use.  Hence, the current technology to test marijuana levels does not reliably show if an individual is intoxicated or was intoxicated at work.  As marijuana is legal in many states, an employer cannot tell—based solely on an employee’s having failed to a drug test—whether the marijuana use was lawful through a urine test.  However, because many employers have a zero tolerance for drug use, most workplaces use urine tests for any recent use of drugs.

Fortunately, some states have changed their laws in recognition of the unreliability in marijuana testing.  In Nevada, starting in 2020, employers cannot refuse to hire a job applicant for failing a marijuana test, with limited exceptions.  Similarly, in New York City, many employers will no longer be able to test job applicants for marijuana or THC.  The new mandate will take effect in 2020.  In Arizona, Arkansas, Delaware, Minnesota, and Rhode Island, employers may not refuse to hire or otherwise penalize a person based solely upon the person’s status as a medical marijuana patient or for testing positive for marijuana on a drug test.  However, the federal government, at present, does not limit the right of private companies to perform drug testing on their employees.

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By Edgar M. Rivera

On July 23, Representative Jerrold Nadler (D-N.Y.) and Senator Kamala D. Harris (D-Calif.) introduced the Marijuana Opportunity Reinvestment and Expungement Act (the “MORE Act”) which aims to decriminalize marijuana by removing it from the list of controlled substances in Schedule I of the Controlled Substances Act and to ensure that those impacted by the war on drugs have an opportunity to be a part of the cannabis industry.  The House version of the bill, H.R. 3884, has 28 Democratic and 1 Republican co-sponsors; the Senate version, S. 2227, has four co-sponsors, all of whom are Democrats.

According to the press release issued by Senator Harris, the MORE ACT:

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By Edgar M. Rivera

On March 27, 2019, in Wild v. Carriage Funeral Holdings, Inc., the Superior Court of New Jersey Appellate Division reversed the trial court’s dismissal of plaintiff Justin Wild’s disability claim under the New Jersey Law Against Discrimination (“LAD”) against Carriage Funeral Holdings, Inc. (“Carriage”).  Carriage fired Mr. Wild, an authorized medical-marijuana user under the New Jersey Compassionate Use Medical Marijuana Act (the “Compassionate Use Act”), for using marijuana off duty as part of his cancer treatment.

The Compassionate Use Act, New Jersey’s medical marijuana law, was enacted in 2010.  Mr. Wild began working for Carriage as a licensed funeral director in 2013.  In 2015, he was diagnosed with cancer.  As part of his treatment, Mr. Wild’s physician prescribed marijuana as permitted under the Compassionate Use Act.  In May 2016, a vehicle ran a stop sign and struck Mr. Wild while he was driving for a funeral job.  Injured, Mr. Wild was taken by an ambulance to a hospital emergency room. At the hospital, Mr. Wild advised a treating physician that Mr. Wild had a license to possess medical marijuana.

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By Edgar M. Rivera

On April 9, 2019, the New York City Council (the “Council”) passed a bill that would prohibit New York City employers from requiring a prospective employee to submit to testing for the presence of any tetrahydrocannabinols (“THC”), the active ingredient in marijuana, as a condition of employment.  Exceptions to the prohibition are provided for safety and security sensitive jobs—such as police officers, peace officers, positions with law enforcement functions, construction workers, drivers, and care givers—and positions tied to a federal or state contract or grant.

Medical marijuana in New York has been legal since 2014, when New York passed the Compassionate Care Act, which allows certified patients suffering from certain serious health conditions to obtain marijuana from their physician for medical use.  There were more than 60,000 certified patients in New York as of June 30, 2018.

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By Edgar M. Rivera, Esq.

On September 5, 2018, in Noffsinger v. SSC Niantic Operating Co., the District Court of Connecticut held that, under the Connecticut Palliative Use of Marijuana Act (“PUMA”), employers are prohibited from refusing to hire a person because of the person’s status as a qualifying medical marijuana patient, which includes refusing to hire someone because they failed to pass a drug test for marijuana.  This case makes it clear that anyone who is prescribed marijuana or a marijuana derivative does not need to choose between taking their medication and losing an employment opportunity.

In Noffsinger, Plaintiff Katelin Noffsinger accepted a job offer from Defendant SSC Niantic Operating Company, LLC d/b/a Bride Brook Health & Rehabilitation Center (the “Center”).  The offer was contingent on drug testing, and Ms. Noffsinger told the Center that she was qualified under PUMA to use marijuana for medical purposes to treat her post-traumatic stress disorder, which she was diagnosed with in 2012 after being in a car accident, and related night terrors (marijuana generally prevents lucid or vivid dreams).  After her drug test came back positive for THC consistent with the use of marijuana, the Center rescinded its job offer.  The Center’s position was that it did not allow medical marijuana for its employees, so Ms. Noffsinger was disqualified for employment with them.

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